<PAGE>
As filed with the Securities and Exchange Commission on May 25, 1994
Registration No. 33-52831
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 4
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
PROTECTIVE LIFE
CORPORATION PLC CAPITAL L.L.C.
(Exact name of registrant as specified (Exact name of registrant as specified
in its charter) in its charter)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
95-2492236 63-1114346
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
</TABLE>
C/O DEBORAH J. LONG, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
PROTECTIVE LIFE CORPORATION
2801 HIGHWAY 280 SOUTH
BIRMINGHAM, ALABAMA 35223
(205) 879-9230
(Address, including zip code and telephone number, including area
code, of registrants' principal executive offices and agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
MICHAEL W. BLAIR, ESQ. ALAN J. SINSHEIMER, ESQ.
DEBEVOISE & PLIMPTON SULLIVAN & CROMWELL
875 THIRD AVENUE 125 BROAD STREET
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10004
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time as determined by market conditions, after the effective date of this
registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
------------------------
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SUPPLEMENT SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 25, 1994
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED MAY [ ], 1994
2,200,000 PREFERRED SECURITIES
PLC CAPITAL L.L.C.
% CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES, SERIES A ("MIPS"*)
(LIQUIDATION PREFERENCE $25 PER SERIES A PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
---------
The % Cumulative Monthly Income Preferred Securities, Series A (the
"Series A Preferred Securities"), representing preferred limited liability
company interests offered hereby are being issued by PLC Capital L.L.C. ("PLC
Capital"), a Delaware limited liability company formed by Protective Life
Corporation, a Delaware corporation ("Protective Life"), solely to issue
securities and loan the proceeds thereof to Protective Life. Accordingly, the
proceeds from the sale of Series A Preferred Securities will be loaned by PLC
Capital to Protective Life in exchange for % subordinated debentures of
Protective Life (the "Series A Subordinated Debentures") having the terms
described herein, and payments on the Series A Preferred Securities will be
completely dependent on payments by Protective Life on the Series A Subordinated
Debentures. See "Terms of the Series A Preferred Securities" and "Description of
Series A Subordinated Debentures".
Holders of the Series A Preferred Securities will be entitled to receive, in
preference to holders of Common Securities (as defined herein), cumulative cash
distributions ("dividends"), at an annual rate of % of the liquidation
preference of $25 per Series A Preferred Security, accruing from the date of
original issuance and payable monthly in arrears on the last day of each
calendar month, commencing May , 1994. No dividends received by a holder of
Series A Preferred Securities will be eligible for the dividends received
deduction for U.S. federal income tax purposes. The payment of dividends (but
only if and to the extent declared out of moneys held by PLC Capital and legally
available therefor and not otherwise) and payments on liquidation (but only to
the extent of the remaining assets of PLC Capital and not otherwise) or
redemption with respect to the Series A Preferred Securities are guaranteed for
as long as the Series A Preferred Securities are outstanding by a subordinated
guarantee (the "Guarantee") of Protective Life to the extent described herein.
See "Description of the Guarantee".
As of April 30, 1994, Protective Life had approximately $146 million of
outstanding consolidated indebtedness, all of which would rank senior to the
Series A Subordinated Debentures and the Guarantee.
The Series A Preferred Securities are redeemable, at the option of PLC
Capital, in whole or in part, at any time on or after May , 1999 and will be
redeemed, under certain circumstances, from the proceeds of any cash repayment
or permitted prepayment by Protective Life of the Series A Subordinated
Debentures, in each case at a cash redemption price of $25 per Series A
Preferred Security, plus accumulated and unpaid dividends (whether or not
declared) to the redemption date (the "Redemption Price"). In addition, at the
option of PLC Capital, following the occurrence of an Investment Company Act
Event or a Tax Event (each as defined herein), the Series A Preferred Securities
are redeemable, in whole but not in part, for cash at the Redemption Price or
exchangeable, in whole but not in part, for the Series A Subordinated Debentures
of Protective Life referred to above having an aggregate principal amount and
accrued and unpaid interest equal to the Redemption Price. If the Series A
Preferred Securities are exchanged for Series A Subordinated Debentures,
Protective Life has agreed to use its best efforts to have the Series A
Subordinated Debentures listed on the same exchange, if any, on which the Series
A Preferred Securities are listed. See "Terms of the Series A Preferred
Securities -- Redemption".
In the event of the liquidation of PLC Capital, holders of Series A
Preferred Securities will be entitled to receive for each Series A Preferred
Security a liquidation preference of $25 plus accumulated and unpaid dividends
(whether or not declared) to the date of payment before any liquidation payments
are made in respect of Common Securities. See "Terms of the Series A Preferred
Securities -- Liquidation Distribution".
--------------------
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE SERIES A
PREFERRED SECURITIES OFFERED HEREBY, INCLUDING THE PERIOD AND CIRCUMSTANCES
DURING AND UNDER WHICH PAYMENTS ON THE SERIES A PREFERRED SECURITIES AND SERIES
A SUBORDINATED DEBENTURES MAY BE DEFERRED AND RELATED FEDERAL INCOME TAX
CONSEQUENCES.
--------------------
The Series A Preferred Securities have been approved for listing on the New
York Stock Exchange (the "NYSE"), subject to official notice of issuance.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO PLC
OFFERING PRICE COMMISSIONS(1) CAPITAL(2)(3)
--------------------- --------------------- ---------------------
<S> <C> <C> <C>
Per Series A Preferred Security.......................... $25.00 (2) $25.00
Total.................................................... $55,000,000 (2) $55,000,000
<FN>
- - - --------------------
(1) Protective Life and PLC Capital have agreed to indemnify the several
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting."
(2) Protective Life has agreed to pay to the Underwriters, as compensation for
their services, a commission of $ per Series A Preferred Security (or
$ in the aggregate), except that such compensation will be $ per
Series A Preferred Security sold to certain institutions, thus reducing
the aggregate compensation specified above. See "Underwriting."
(3) Expenses of the offering, estimated at $, are payable by Protective Life.
</TABLE>
--------------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of certificates for the Series A Preferred Securities
will be made only in book-entry form through the facilities of The Depository
Trust Company on or about May , 1994.
- - - --------------------
*An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
KIDDER, PEABODY & CO.
INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
-----------
The date of this Prospectus Supplement is May , 1994.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
--------------
FOR NORTH CAROLINA PURCHASERS: THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE COMMISSIONER OF INSURANCE FOR THE STATE OF NORTH CAROLINA,
NOR HAS THE COMMISSIONER OF INSURANCE RULED UPON THE ACCURACY OR ADEQUACY OF
THIS DOCUMENT.
--------------
S-2
<PAGE>
PLC CAPITAL L.L.C.
PLC Capital is a limited liability company formed under the laws of the
State of Delaware. Protective Life owns, directly and indirectly, all the
outstanding common limited liability company interests ("Common Securities") of
PLC Capital, which Common Securities are nontransferable. PLC Capital was formed
by Protective Life and a wholly-owned subsidiary solely to issue preferred or
preference limited liability company interests ("Preferred Securities") and
Common Securities (collectively, the "Membership Securities") and to lend the
proceeds thereof to Protective Life in exchange for subordinated debentures
("Subordinated Debentures"). Interest and principal on Subordinated Debentures
are intended to fund the payment of dividends and redemption and liquidation
distributions on the Membership Securities. Accordingly, PLC Capital's sole
source of cash flow is Protective Life, and PLC Capital's ability to make
dividend and other payments in respect of the Series A Preferred Securities will
be dependent on interest and principal payments by Protective Life on the Series
A Subordinated Debentures. See "Protective Life Corporation". PLC Capital will
be managed by Protective Life, in its capacity as a holder of Common Securities
(in such capacity, the "Managing Member"). PLC Capital's principal executive
offices are located at 2801 Highway 280 South, Birmingham, Alabama 35223
(Telephone: (205) 879-9230).
PLC Capital is a legal entity under the laws of the State of Delaware and is
distinct from its owners, who are known as "members". A Delaware limited
liability company provides limited liability to its members in a manner similar
to that provided to stockholders of a Delaware corporation. Therefore, unless
expressly provided in a limited liability company agreement or otherwise agreed,
under Delaware law no general liability exists for members or managers of a
limited liability company. The Amended and Restated Limited Liability Company
Agreement of PLC Capital (the "L.L.C. Agreement") provides that Protective Life
will have general liability for the debts and obligations of PLC Capital
(including tax obligations, but excluding obligations in respect of Series A
Preferred Securities) in the same manner as a general partner of a Delaware
limited partnership. Under Delaware law, members who hold Series A Preferred
Securities (other than Protective Life) will not be liable for the debts,
obligations and liabilities of PLC Capital, whether arising in contract, tort or
otherwise, solely by reason of being a member of PLC Capital (subject to any
obligation such members may have to repay any funds that may have been
wrongfully distributed to them).
PROTECTIVE LIFE CORPORATION
Protective Life, a Delaware corporation incorporated in 1981, is an
insurance holding company that owns a group of life insurance companies that
provide financial services through the production, distribution and
administration of insurance and investment products. Protective Life Insurance
Company ("Protective Life Insurance"), founded in 1907, is Protective Life's
principal operating subsidiary. Protective Life Insurance has five marketing
divisions: Agency, Group, Guaranteed Investment Contracts, Financial
Institutions, and Investment Products. Protective Life Insurance has two
additional business segments: Acquisitions and Corporate and Other. Unless the
context otherwise requires, as used in this section "Protective Life" refers to
the consolidated group of Protective Life Corporation and its subsidiaries.
Protective Life's principal executive offices are located at 2801 Highway 280
South, Birmingham, Alabama 35223 (Telephone: (205) 879-9230).
During 1993, Protective Life reported revenues of $760 million and net
income of $57 million. During the three months ended March 31, 1994, Protective
Life reported revenues of $196 million and net income of $17 million. At March
31, 1994, Protective Life had total assets of $5.4 billion, stockholders' equity
of $319 million and life insurance in force of $43.3 billion. Protective Life's
insurance subsidiaries generated approximately 94% of its revenues in 1993 and
98% of its revenues for the three months ended March 31, 1994. Protective Life
Insurance is currently rated A+ (Superior) by A.M. Best Company, Inc. ("A.M.
Best"). A.M. Best, an independent insurance industry rating organization,
assigns fifteen letter ratings to insurance companies, ranging from "A++
(Superior)" to "C-(Fair)." A.M. Best's
S-3
<PAGE>
ratings are based on factors of relevance primarily to policyholders and are not
directed to the protection of investors, such as holders of the Series A
Preferred Securities. Such ratings do not apply to the Series A Preferred
Securities offered hereby.
AGENCY DIVISION
Since 1983, the Agency Division has utilized a distribution system based on
experienced independent personal producing general agents who are recruited by
regional sales managers. At December 31, 1993, there were 26 regional sales
managers located throughout the United States and approximately 12,850
independent personal producing general agents, brokers, and other agents under
contract. In 1993 the Division began distributing certain insurance products
through securities broker-dealers.
Current marketing efforts in the Agency Division are directed toward
universal life products and products designed to compete in the term
marketplace. Protective Life currently emphasizes back-end loaded universal life
policies which reward the continuing policyholder and which are designed to
maintain the persistency of its universal life business. The products designed
to compete in the term marketplace are term-like policies with guaranteed level
premiums for the first 15 years which provide a competitive net cost to the
insured.
GROUP DIVISION
Protective Life markets its group insurance products primarily in the
southeastern and southwestern United States using the services of brokers who
specialize in group products. Sales offices in Alabama, Florida, Georgia,
Illinois, Missouri, North Carolina, Ohio, Oklahoma, Tennessee and Texas are
maintained to serve these brokers. The Group Division offers substantially all
forms of group insurance customary in the industry, making available complete
packages of life and accident and health insurance to employers. The life and
accident and health insurance packages include hospital and medical coverages as
well as dental and disability coverages. To address rising health care costs,
the Group Division provides cost containment services such as utilization review
and catastrophic case management. Group policies are directed primarily at
employers and associations with between 25 and 1,000 employees.
The group accident and health insurance business is generally considered to
be cyclical. Profits rise or fall as competitive forces allow or prevent rate
increases to keep pace with changes in group health medical costs. Protective
Life is placing marketing emphasis on other specialty health insurance products
which are less affected by medical cost inflation, including dental insurance
policies, hospital indemnity policies and individual cancer insurance policies.
Sales of both the cancer and the dental products have expanded rapidly and now
represent a substantial portion of the Group Division's premiums and operating
income. It is anticipated that a significant part of the growth in Protective
Life's health insurance premium income in the next several years will be from
such specialty products.
In October 1993, the Clinton Administration submitted to Congress draft
legislation proposing major reform of the nation's basic health care system.
While it is impossible to predict the specifics of any reforms that may emerge
from the legislative process, because of Protective Life's increasing focus on
specialty health products such as dental and cancer coverage, Protective Life
does not believe that such basic health care legislation will have a material
adverse effect on its business.
FINANCIAL INSTITUTIONS DIVISION
The Financial Institutions Division specializes in marketing insurance
products through commercial banks, savings and loan associations, and mortgage
bankers. It markets an array of life and health products designed to repay
consumer and mortgage loans upon the occurrence of certain covered events. The
majority of these policies cover consumer and mortgage loans made by financial
institutions located primarily in the southeastern United States. The Financial
Institutions Division also markets life and health products through the consumer
finance industry and through automobile dealerships. The Division markets
through both employee field representatives and brokers. The Financial
Institutions Division also offers certain products through direct mail
solicitation to customers of financial institutions.
S-4
<PAGE>
INVESTMENT PRODUCTS DIVISION
The Investment Products Division manufactures, sells, and supports annuity
products. These products are sold through the Agency Division, financial
institutions, and broker-dealer distribution channels. The Investment Products
Division was formed to respond to an increased consumer demand for savings
vehicles. The Investment Products Division also includes Protective Equity
Services, Inc. ("PES"), a securities broker-dealer subsidiary. Through PES,
licensed members of Protective Life Insurance's field force can sell stocks,
bonds, mutual funds, and other financial instruments that may be manufactured or
issued by companies other than Protective Life Insurance.
GUARANTEED INVESTMENT CONTRACTS DIVISION
In 1989, Protective Life Insurance began selling guaranteed investment
contracts ("GICs"). Protective Life Insurance's GICs are contracts, generally
issued to a 401(k) or other retirement savings plan, which guarantee a fixed
return on deposits with such a plan for a specified period and often provide
flexibility for withdrawals, in keeping with the benefits provided by the plan.
Protective Life Insurance also offers a related product which is purchased
primarily as a temporary investment vehicle by the trustees of escrowed
municipal bond proceeds.
GIC sales are affected by the claims paying and financial strength ratings
of Protective Life Insurance. Any downgrade in such ratings of Protective Life
Insurance could have an adverse effect on its ability to sell GICs.
ACQUISITIONS DIVISION
Protective Life actively seeks to acquire blocks of insurance policies.
These acquisitions may be accomplished through acquisitions of companies or
through the assumption or reinsurance of policies. Reinsurance transactions may
be made with court-administered insolvent companies or with companies otherwise
divesting themselves of blocks of business. Generally, such acquisitions do not
include the acquisition of an active sales force. Blocks of policies acquired
through the Acquisitions Division are administered as "closed" blocks; I.E., no
new policies are sold. Therefore, the amount of insurance in force for a
particular block of acquired business is expected to decline with time due to
lapses and deaths of the insureds. The experience of Protective Life has been
that acquired or reinsured business has been administered more efficiently by
Protective Life than by previous management or court administrators.
CORPORATE AND OTHER
The Corporate and Other segment consists of several small insurance lines of
business and the operations of several small noninsurance subsidiaries.
INVESTMENT PORTFOLIO
At March 31, 1994, Protective Life had approximately $4.8 billion of
invested assets. Protective Life seeks to maintain a conservative investment
portfolio, yet deliver attractive returns to its policyholders and shareholders.
The portfolio of invested assets is managed to support the liabilities of
Protective Life's lines of business. Protective Life invests its assets giving
consideration to such factors as liquidity needs, investment quality, investment
return, matching of assets and liabilities and the composition of the portfolio
by asset type and credit exposure. At March 31, 1994, Protective Life's invested
assets consisted of the following: 65% in fixed maturity investments (corporate
bonds, mortgage-backed securities, and bank loan participations); 28% in
commercial mortgages; 3% in policy loans; and 4% in other assets including
short-term investments. At March 31, 1994, Protective Life's consolidated
holdings of unrated or below investment grade fixed maturity investments
amounted to 8.6% of its fixed maturity investments. In the early 1990's the life
insurance industry attracted intense scrutiny due to mortgage loan problems.
Many of these mortgage loan problems related to loans made on speculative,
multi-tenant office buildings and on hotels -- market segments to which
Protective Life, despite the investment of a large percentage of its portfolio
in commercial mortgages, has little exposure. At March 31, 1994, loans to
shopping centers anchored by K-Mart, Food Lion and Wal-Mart constituted 7%, 6%
and 4%, respectively, of Protective Life's commercial mortgage portfolio.
S-5
<PAGE>
CERTAIN INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities should carefully
review the information contained elsewhere in this Prospectus Supplement and in
the accompanying Prospectus and should particularly consider the following
matters.
DEPENDENCE ON SERIES A SUBORDINATED DEBENTURE PAYMENTS
The proceeds from the sale of the Series A Preferred Securities offered
hereby, together with the capital contributions made in respect of the Common
Securities, will be loaned by PLC Capital to Protective LIfe in exchange for
Series A Subordinated Debentures of Protective Life. After giving effect
thereto, PLC Capital will have no assets other than such Series A Subordinated
Debentures. Thus, payments by PLC Capital on the Series A Preferred Securities
will be completely dependent on payments by Protective Life on the Series A
Subordinated Debentures, which in turn may be affected by the other matters
referred to below and elsewhere in this Prospectus Supplement and the
Prospectus.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Protective Life has the right under the Series A Subordinated Debentures to
extend interest payment periods to up to 60 months, and, as a consequence,
monthly dividends on the Series A Preferred Securities may be deferred (but will
continue to accumulate, together with additional dividends on any such
accumulated but unpaid dividends at the dividend rate) by PLC Capital during any
such extended interest payment period. In the event that Protective Life
exercises this right, Protective Life may not declare dividends on or
repurchase, except as described herein, any shares of its capital stock. See
"Description of the Series A Subordinated Debentures -- Interest".
TAX CONSEQUENCES OF EXTENDED INTEREST PERIOD
Should an extended interest payment period occur, PLC Capital will continue
to accrue income for U.S. federal income tax purposes which will be allocated,
but not distributed, to record holders of Series A Preferred Securities. As a
result, such holders should include such amounts in income for U.S. federal
income tax purposes in advance of the receipt of cash, and any such holders who
dispose of Series A Preferred Securities prior to the record date for payment of
dividends following such extended period will therefore have included such
amounts in income but will not have received the cash dividends related thereto.
See "Certain Federal Income Tax Considerations -- Potential Extension of Payment
Period" and "-- Exchange of Series A Preferred Securities for Series A
Subordinated Debentures".
SUBORDINATION OF SERIES A SUBORDINATED DEBENTURES AND THE GUARANTEE
Protective Life's obligations under the Series A Subordinated Debentures and
the Guarantee are subordinate and junior in right of payment to all Senior
Indebtedness of Protective Life. See "Description of the Series A Subordinated
Debentures -- Subordination". At April 30, 1994, Protective Life had
approximately $146 million of outstanding consolidated indebtedness, all of
which would rank senior to the Series A Subordinated Debentures and the
Guarantee. The terms of the Series A Preferred Securities and the Series A
Subordinated Debentures do not limit Protective Life's ability to incur
additional indebtedness, including indebtedness that ranks senior to the Series
A Subordinated Debentures and the Guarantee.
SCOPE OF GUARANTEE
The Guarantee is not a guarantee that any particular dividend or amount on
dissolution, liquidation or winding-up will be paid; rather, the Guarantee is
solely a guarantee of payment of dividends, if any, that are in fact declared
out of funds legally available therefor, of the redemption price payable, out of
funds held by PLC Capital and legally available therefor, with regard to any
Series A Preferred Securities called for redemption by PLC Capital and of
amounts, if any, available for distribution to the holders of Series A Preferred
Securities upon dissolution, liquidation or winding-up after satisfaction of all
creditors of PLC Capital.
S-6
<PAGE>
HOLDING COMPANY STRUCTURE
Protective Life is a holding company that derives substantially all of its
operating income and cash flow from its insurance company subsidiaries.
Protective Life's ability to pay principal and interest on Senior Indebtedness
and the Series A Subordinated Debentures is affected by the ability of its
insurance company subsidiaries to declare and distribute dividends and to make
payments on surplus notes (I.E., deeply subordinated inter-company notes owed by
insurance company subsidiaries to Protective Life that are treated as equity
capital for statutory accounting purposes), both of which may be limited by
regulatory restrictions and, in the case of payments on surplus notes, by
certain financial covenants. Protective Life's cash flow is also dependent on
revenues from investment, data processing, legal and management services
rendered to its subsidiaries. Insurance company subsidiaries of Protective Life
are subject to various state statutory and regulatory restrictions, applicable
to insurance companies generally, that limit the amount of cash dividends, loans
and advances that those subsidiaries may pay to Protective Life. Under Tennessee
insurance laws, Protective Life Insurance may generally only pay dividends to
Protective Life out of its unassigned surplus as reflected in its statutory
financial statements filed in that State. In addition, the Tennessee
Commissioner of Insurance must approve (or not disapprove within 30 days of
notice) payment of an "extraordinary" dividend from Protective Life Insurance,
which generally under Tennessee insurance laws is a dividend that exceeds,
together with all dividends paid by Protective Life Insurance within the
previous 12 months, the greater of (I) 10% of Protective Life Insurance's
surplus as regards policyholders at the preceding December 31 or (II) the net
gain from operations of Protective Life Insurance for the 12 months ended on
such December 31. The maximum amount that would qualify as ordinary dividends to
Protective Life by its insurance subsidiaries in 1994 is estimated to be $57
million. No assurance can be given that more stringent restrictions will not be
adopted from time to time by states in which Protective Life's insurance
subsidiaries are domiciled, which restrictions could have the effect, under
certain circumstances, of significantly reducing dividends or other amounts
payable to Protective Life by such subsidiaries without affirmative prior
approval by state insurance regulatory authorities.
In the event of the insolvency, liquidation, reorganization, dissolution or
other winding-up of a subsidiary of Protective Life, all creditors of such
subsidiary, including holders of life and health insurance policies, would be
entitled to payment in full out of the assets of such subsidiary before
Protective Life, as shareholder or holder of surplus notes, would be entitled to
any payment, and thus such creditors would have to be paid in full before the
creditors of Protective Life (including the holders of the Series A Subordinated
Debentures) would be entitled to receive any payment from the assets of such
subsidiary.
REDEMPTION OR EXCHANGE UPON OCCURRENCE OF CERTAIN EVENTS
Under certain circumstances relating to changes in law, the Series A
Preferred Securities may be subject to redemption or exchange at the option of
Protective Life. See "Terms of the Series A Preferred Securities -- Redemption"
and "Certain Federal Income Tax Considerations -- Exchange of Series A Preferred
Securities for Series A Subordinated Debentures".
REDUCTION OF PAYMENTS TO NON-U.S. HOLDERS BECAUSE OF WITHHOLDING REQUIREMENTS
In the event that any U.S. taxes, duties or other governmental charges are
required to be deducted or withheld from any payments to non-U.S. holders of the
Series A Preferred Securities, neither Protective Life nor PLC Capital would be
required to pay any additional amounts to such holders and, therefore, any such
taxes, duties or charges would reduce the amounts received by such holders.
S-7
<PAGE>
CAPITALIZATION OF PROTECTIVE LIFE
The following table sets forth the unaudited summary capitalization of
Protective Life and its consolidated subsidiaries at March 31, 1994 and as
adjusted to give effect to the sale of the Series A Preferred Securities offered
hereby and the application of the proceeds therefrom as described under "Use of
Proceeds" herein. The table should be read in conjunction with Protective Life's
consolidated financial statements and notes thereto and other financial data
incorporated by reference herein. See "Incorporation of Certain Documents by
Reference" in the accompanying Prospectus.
<TABLE>
<CAPTION>
AS OF MARCH 31, 1994
-------------------------
ACTUAL AS ADJUSTED
----------- ------------
(IN THOUSANDS)
<S> <C> <C>
Short-term debt
Current portion of long-term debt.................................................... $ 9,500 $ --
----------- ------------
Total short-term debt.............................................................. 9,500 --
----------- ------------
----------- ------------
Long-term debt
Notes payable to banks............................................................... 136,500 93,702
Mortgage and other notes payable less current portion................................ 99 99
----------- ------------
Total long-term debt............................................................... 136,599 93,801
Series A Preferred Securities of PLC Capital (minority interest in consolidated
subsidiary)........................................................................... -- 55,000
Stockholders' equity
Preferred Stock ($1 par value shares authorized: 850,000; issued: none).............. -- --
Junior Participating Cumulative Preferred Stock ($1 par value shares authorized:
150,000; issued: none).............................................................. -- --
Common equity ($.50 par value shares authorized: 20,000,000; issued and outstanding:
13,693,244)......................................................................... 318,905 318,905
----------- ------------
Total stockholders' equity......................................................... 318,905 318,905
----------- ------------
Total capitalization............................................................. $ 465,004 $ 467,706
----------- ------------
----------- ------------
</TABLE>
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities (together
with capital contributed in respect of Common Securities) will be loaned to
Protective Life in exchange for Series A Subordinated Debentures. Protective
Life intends to use the net proceeds of such loans (after paying commissions to
the underwriters and other offering expenses estimated to equal in the aggregate
$2.7 million) to repay bank borrowings under a variable rate term note and a
three year revolving line of credit bearing interest at rates ranging from 4.4%
to 4.8% at March 31, 1994. Protective Life intends to enter into one or more
interest rate swap contracts which will, in effect, convert a majority of its
payment obligations with respect to the Series A Subordinated Debentures to
floating rate obligations for at least five years.
S-8
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA OF PROTECTIVE LIFE CORPORATION
The following selected financial information for the years ended as of
December 31, 1993, 1992, 1991, 1990 and 1989 has been derived from previously
published audited consolidated financial statements of Protective Life, prepared
in accordance with generally accepted accounting principles, which have been
examined and reported upon by Coopers & Lybrand, independent auditors. The
selected financial information for the three months ended March 31, 1993 and
1994 is unaudited but in the opinion of management, all adjustments (consisting
of normal recurring accruals) necessary for a fair presentation have been
included. Operating results for the three month period ended March 31, 1994 are
not necessarily indicative of the results that may be expected for the year
ending December 31, 1994. The selected financial information should be read in
conjunction with, and is qualified in its entirety by reference to, the
consolidated financial statements from which it has been derived and the
accompanying notes thereto incorporated by reference herein.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEARS ENDED DECEMBER 31,
----------------------- ---------------------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
--------- --------- --------- --------- --------- --------- ---------
(IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA
Premiums and Policy Fees........ $ 89,437 $ 85,848 $ 370,758 $ 323,136 $ 273,975 $ 248,448 $ 236,830
Net Investment Income........... 100,248 81,196 362,130 284,069 233,502 136,995 82,453
Realized Investment Gains
(Losses)....................... 2,297 125 5,054 (14) (3,085) (3,154) 209
Other Income.................... 3,562 4,930 21,695 18,835 11,556 8,197 5,231
--------- --------- --------- --------- --------- --------- ---------
Total Revenues.................. 195,544 172,099 759,637 626,026 515,948 390,486 324,723
Benefits and Expenses........... 171,165 154,804 674,593 566,079 464,245 350,204 292,437
--------- --------- --------- --------- --------- --------- ---------
Income Before Income Tax........ 24,379 17,295 85,044 59,947 51,703 40,282 32,286
Net Income...................... 16,578 11,919 56,550(1) 41,420(2) 35,789 28,133 21,793
PRE-TAX INCOME BY BUSINESS
SEGMENT
Agency.......................... 5,042 4,278 20,064(3) 12,985 12,087 9,877 3,703
Group........................... 1,865 2,464 10,394 7,731 8,146 6,193 6,059
Financial Institutions.......... 2,316 2,069 8,196 5,411 4,447 3,120 2,964
Investment Products............. 1,173 890 2,931(3) 4,601 391 (1,351) (1,423)
Guaranteed Investment
Contracts...................... 9,361 4,900 25,405 14,533 9,933(4) 2,919(4) (289)
Acquisitions.................... 8,966 5,931 29,845(3) 20,031 23,494 17,659 17,736
Corporate and Other............. (4,487) (3,658) (13,667)(3),(4) (3,896)(4) (4,110)(4) 3,624 3,327
Unallocated and Realized
Investment Gains............... 143 421 1,876 (1,449) (2,685) (1,759) 209
--------- --------- --------- --------- --------- --------- ---------
Total Pre-tax Income (5)........ 24,379 17,295 85,044 59,947 51,703 40,282 32,286
BALANCE SHEET DATA
Invested Assets:
Fixed Maturities.............. 3,101,454(6) 2,386,538 3,051,292(6) 2,185,015 1,541,991 1,035,176 421,165
Equity Securities............. 72,458 32,805 40,596 26,588 31,235 23,222 20,657
Mortgage Loans on Real
Estate....................... 1,357,324 1,227,177 1,407,744 1,178,164 985,159 666,150 388,913
Investment Real Estate........ 28,591 19,330 22,061 17,020 22,240 16,713 10,651
Policy Loans.................. 139,284 117,353 141,135 117,873 120,527 127,253 107,594
Other Long-term Investments... 16,744 22,243 20,191 19,618 29,259 34,676 20,527
Short-term Investments........ 83,268 54,148 83,692 52,792 65,344 126,046 36,412
--------- --------- --------- --------- --------- --------- ---------
Total Invested Assets........... 4,799,123 3,859,594 4,766,711 3,597,070 2,795,755 2,029,236 1,005,919
Total Assets.................... 5,350,255 4,348,525 5,316,005 4,006,667 3,120,290 2,331,197 1,232,280
Total Debt...................... 146,099 143,840 147,118 88,248 57,579 81,145 27,831
Total Liabilities............... 5,031,350 4,058,020 4,955,272 3,725,267 2,868,545 2,108,871 1,020,611
Stockholders' Equity............ 318,905(6) 290,505 360,733(6) 281,400 251,745 222,326 211,669
PER SHARE DATA
Net Income...................... 1.21 0.87 4.13(1) 3.03(2) 2.62 2.07 1.58
Stockholders' Equity............ 23.27(6) 21.22 26.34(6) 20.56 18.44 16.29 15.50
STATUTORY FINANCIAL DATA (7)
Net Income...................... 13,459 6,096 53,138 32,426 35,196 25,335 20,483
Total Capital and Surplus....... $ 274,896 207,623 $ 265,075 $ 208,476 $ 189,473 $ 167,325 $ 150,636
<FN>
- - - ------------------------------
1. Reduced by one-time adjustment of income tax expense of $1,261 or $.09 per
share due to increase in the corporate income tax rate from 34% to 35%.
2. Reflects the adoption of SFAS No. 106, "Employers' Accounting For
Postretirement Benefits Other Than Pensions," which decreased net income
$1,053 or $.08 per share.
3. In 1993 Protective Life changed the method used to apportion net investment
income within Protective Life. The change resulted in increased income
attributable to the Agency, Investment Products, and Acquisitions business
segments of $3,000, $2,000 and $2,600, respectively, while decreasing
income of the Corporate and Other segment.
4. Pre-tax income for the Guaranteed Investment Contracts business segment has
not been reduced by pre-tax minority interest of $1,631 in 1991 and $1,326
in 1990. Pre-tax income for the Corporate and Other business segment has
not been reduced by pre-tax minority interest of $19 in 1993 and $90 in
1992 and 1991.
</TABLE>
S-9
<PAGE>
<TABLE>
<S> <C>
5. For the ratio of consolidated earnings to fixed charges for each of the
five years ended as of December 31, 1993, and for the three months ended
March 31, 1993 and 1994, see "Ratio of Consolidated Earnings to Fixed
Charges" in the accompanying Prospectus.
6. Reflects the adoption of SFAS No. 115, "Accounting For Certain Investments
in Debt and Equity Securities." The effect of adopting SFAS No. 115 at
December 31, 1993 (compared to financial statements prepared under previous
accounting standards) was to increase fixed maturities by $65,622, decrease
deferred policy acquisition costs by $12,450, increase the liability for
deferred income taxes by $18,610, and increase Stockholders' Equity by
$34,562 or $2.52 per share. The effect of adopting SFAS No. 115 at March
31, 1994 was to decrease fixed maturities by $28,667, decrease the
liability for deferred income taxes by $10,033 and decrease Stockholders'
Equity by $18,634 or $1.19 per share.
7. Of Protective Life's insurance subsidiaries prepared in conformity with
statutory accounting practices prescribed or permitted by insurance
regulatory authorities. Statutory accounting practices differ in some
respects from generally accepted accounting principles. For example, (a)
acquisition costs of obtaining new businesses are expensed as incurred, (b)
benefit liabilities are computed using methods statutorily mandated and are
not adjusted for actual experience, (c) income tax expense is computed on
taxable earnings and (d) furniture and equipment, agents' debit balances
and prepaid expenses are charged directly against surplus rather than
reported as assets.
</TABLE>
S-10
<PAGE>
TERMS OF THE SERIES A PREFERRED SECURITIES
GENERAL
Preferred Securities of PLC Capital may be issued from time to time in one
or more series, as described in the accompanying Prospectus, with such dividend
rights, liquidation preferences, redemption or exchange provisions, voting
rights and other rights, powers and duties as are established by the L.L.C.
Agreement of PLC Capital and a written action (the "Action") taken, or to be
taken, by the Managing Member to amend and supplement the L.L.C. Agreement
(which Actions, when taken, constitute an amendment and supplement to, and
become a part of, the L.L.C. Agreement). The Series A Preferred Securities
constitute one such series of Preferred Securities of PLC Capital. The following
is a summary of certain terms of the Series A Preferred Securities. The summary
set forth below addresses the material terms of the Series A Preferred
Securities but is subject to, and qualified in its entirety by reference to, the
text of the L.L.C. Agreement (including the Action establishing the rights,
powers and duties relating to the Series A Preferred Securities, a copy of which
Action will have been filed with the Securities and Exchange Commission (the
"Commission") at or prior to the time of the sales of the Series A Preferred
Securities).
DIVIDENDS
Cumulative dividends on the Series A Preferred Securities will accumulate at
a rate per annum of % of the liquidation preference thereof (or $ per
Series A Preferred Security per annum) from the date of original issuance
thereof and will be payable monthly in arrears on the last day of each calendar
month of each year, commencing May , 1994, when, as and if declared by the
Managing Member to holders of record on the record date therefor. Payment of
dividends is limited to the amount of funds held by PLC Capital and legally
available therefor. See "Description of the Series A Subordinated Debentures".
Dividends will be computed on the basis of twelve 30-day months and a 360-day
year and, for any dividend period shorter than a full calendar month, will be
computed on the basis of the actual number of calendar days elapsed in such
period.
Dividends declared on the Series A Preferred Securities will be payable to
the record holders thereof as they appear on the register for the Series A
Preferred Securities on the relevant record dates, which will be one Business
Day prior to the relevant payment dates. Subject to any applicable fiscal or
other laws and regulations, each such payment will be made as described under
"Book-Entry-Only Issuance; The Depository Trust Company" below. In the event
that any date on which dividends are payable on the Series A Preferred
Securities is not a day on which banks in The City of New York are open for
business (a "Business Day"), then payment of the dividend payable on such date
may be made on the next succeeding Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
Under the L.L.C. Agreement, dividends on the Series A Preferred Securities
must be declared by the Managing Member in any calendar year or portion thereof
to the extent that the Managing Member reasonably anticipates that at the time
of payment it will have, and must be paid by PLC Capital to the extent that at
the time of proposed payment it has, (x) funds legally available for the payment
of such dividends and (y) cash on hand sufficient to permit such payment. It is
anticipated that such funds will be derived from payments by Protective Life of
interest on the Series A Subordinated Debentures.
Under the terms of the Series A Subordinated Debentures, so long as
Protective Life is not in default in the payment of interest on the Series A
Subordinated Debentures, Protective Life shall have the right at any time to
extend the interest payment period to the next interest payment date by a period
(not to exceed 60 months from the last date on which interest was paid in full)
at the end of which Protective Life shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the Series A
Subordinated Debentures to the extent permitted by applicable law). During any
such extended interest period, or at any time during which there is an uncured
Default or Event of Default (each as hereinafter defined) under the Series A
Subordinated Debentures, Protective Life shall not pay any
S-11
<PAGE>
dividends on, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its shares of capital stock or make any guarantee payments
with respect to the foregoing (other than (a) redemptions or purchases pursuant
to Protective Life's Share Purchase Rights Plan described under "Description of
Capital Stock of Protective Life -- Junior Preferred Stock" in the Prospectus,
or any successor to such Plan, and (b) payments under any guarantee of the
Series A Preferred Securities or other Preferred Securities ranking PARI PASSU
with the Series A Preferred Securities). Protective Life is required to give PLC
Capital not less than five Business Days' prior notice of its selection of such
extended interest payment period. See "Description of the Series A Subordinated
Debentures."
If dividends can be paid only in part on the Series A Preferred Securities
in any calendar year or portion thereof as a result of the lack of sufficient
funds legally available for the payment of dividends, then such partial
dividends shall be paid on the respective dividend payment dates on a pro rata
basis to holders of such Series A Preferred Securities. If any dividends on the
Series A Preferred Securities are not paid in full on any dividend payment date,
additional dividends will accumulate on any accumulated and unpaid dividends at
the dividend rate for the Series A Preferred Securities specified above.
Except as described herein, holders of the Series A Preferred Securities
will have no other right to participate or share in the profits or assets of PLC
Capital.
CERTAIN RESTRICTIONS ON PLC CAPITAL
If dividends have not been paid in full on the Series A Preferred
Securities, PLC Capital shall not:
(i) pay, or declare and set aside for payment, any dividends on any
other Preferred Securities ranking PARI PASSU with the Series A Preferred
Securities as regards participation in profits of PLC Capital ("Dividend
Parity Securities"), unless such dividends are paid or set aside for payment
on the Dividend Parity Securities and the Series A Preferred Securities on a
pro rata basis on the date such dividends are paid, so that
(x) (A) the aggregate amount of dividends paid on the Series A
Preferred Securities bears to (B) the aggregate amount of dividends paid
on such Dividend Parity Securities the same ratio as
(y) (A) the aggregate of all accumulated and unpaid dividends in
respect of the Series A Preferred Securities bears to (B) the aggregate
of all accumulated and unpaid dividends in respect of such Dividend
Parity Securities;
(ii) pay, or declare and set aside for payment, any dividends on any
Common Securities or limited liability company interests of PLC Capital
ranking junior to the Series A Preferred Securities as to dividends
("Dividend Junior Securities"); or
(iii) redeem, purchase or otherwise acquire any Dividend Parity
Securities or Dividend Junior Securities;
until, in each case, such time as all accumulated and unpaid dividends (whether
or not declared) on the Series A Preferred Securities shall have been paid in
full for all dividend periods terminating on or prior to, in the case of clauses
(i) and (ii), such payment, and in the case of clause (iii), the date of such
redemption, purchase or acquisition. As of the date of this Prospectus
Supplement, there are no Dividend Parity Securities outstanding.
PLC Capital may not engage in any business or activity other than issuing
its Common Securities, the Series A Preferred Securities and other series of
Preferred Securities having terms generally consistent with those of the Series
A Preferred Securities (other than dividend rate, and other than changes that
would not adversely affect the ability of PLC Capital to make full and timely
dividend payments or payments upon liquidation to the holders of the Series A
Preferred Securities), lending the proceeds thereof to Protective Life in return
for Subordinated Debentures in an aggregate principal amount equal to the amount
of such loan, bearing interest at a rate at least equal to the dividend rate on
Preferred Securities of such series and otherwise having terms generally
consistent with those of the Series A
S-12
<PAGE>
Subordinated Debentures (other than changes that would not adversely affect the
ability of PLC Capital to make full and timely dividend payments or payments
upon liquidation to the holders of the Series A Preferred Securities), redeeming
its Preferred Securities in accordance with the terms thereof and engaging in
activities incidental or conducive to the foregoing. PLC Capital may not
consolidate or merge with, or convey, transfer or lease its properties and
assets substantially as an entirety to, any corporation or other body.
Notwithstanding the foregoing, PLC Capital may, without the consent of the
holders of any series of Preferred Securities, consolidate or merge with or into
any limited liability company, limited partnership, business trust or other
similar entity formed under the laws of any state of the United States; PROVIDED
that (i) such successor entity expressly assumes all of the obligations of PLC
Capital under each series of Preferred Securities then outstanding, (ii) such
successor entity is an entity expressly formed for the purpose of engaging in
such merger or consolidation and has engaged in no activities (other than those
incidental to formation) prior to such merger or consolidation and, at the time
of the consummation thereof, has no liabilities or preferred securities
outstanding, (iii) such merger or consolidation does not adversely affect any
holder of Preferred Securities, (iv) such successor entity will be subject in
all material respects to all covenants binding on PLC Capital contained in the
L.L.C. Agreement, (v) Protective Life expressly acknowledges such successor as
the holder of the Subordinated Debentures pertaining to each series of Preferred
Securities then outstanding, (vi) such merger or consolidation does not cause
any series of Preferred Securities then outstanding to be delisted by any
national securities exchange or other organization on which such Preferred
Securities are then listed, (vii) such merger or consolidation does not cause
any series of Preferred Securities then outstanding to be downgraded by any
"nationally recognized statistical rating organization" (as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Securities Act),
(viii) such merger or consolidation does not adversely affect the powers,
preferences and other special rights of holders of any series of Preferred
Securities then outstanding and (ix) prior to such merger or consolidation
Protective Life has received an opinion of nationally recognized independent
counsel experienced in such matters to the effect that (w) holders of any series
of Preferred Securities then outstanding will not recognize any gain or loss for
federal income tax purposes as a result of such merger or consolidation, (x)
such successor entity will be treated as a partnership for federal income tax
purposes and such merger or consolidation will not otherwise cause PLC Capital
to be subject to more than a DE MINIMIS amount of other taxes, duties or other
governmental charges, (y) following such merger or consolidation Protective Life
and such successor entity will be in compliance with the Investment Company Act
of 1940, as amended (the "1940 Act"), without registering thereunder as an
investment company and (z) such merger or consolidation will not adversely
affect the limited liability of holders of any series of Preferred Securities
then outstanding.
The Managing Member is authorized to conduct its affairs and to operate PLC
Capital in such a way that PLC Capital would not be deemed to be an "investment
company" required to be registered under the 1940 Act or taxed as a corporation
for federal income tax purposes and so that any loans made by PLC Capital to
Protective Life will be treated as indebtedness for federal income tax purposes.
In this connection, the Managing Member is (a) authorized to take any action
that (i) is not inconsistent with applicable law, the Certificate of Formation
of PLC Capital and the L.L.C. Agreement, (ii) does not adversely affect the
holders of Series A Preferred Securities and (iii) the Managing Member
determines in its sole discretion to be necessary or desirable for such purposes
and (b) instructed not to take affirmative actions, other than as contemplated
by the L.L.C. Agreement, that would cause PLC Capital to be deemed such an
"investment company" or taxed as a corporation for federal income tax purposes
or would cause any such loans not to be treated as indebtedness for federal
income tax purposes.
REDEMPTION
MANDATORY REDEMPTION UPON REPAYMENT OF SERIES A SUBORDINATED DEBENTURES AT
MATURITY
The proceeds from any repayment at maturity or permitted prepayment of any
Series A Subordinated Debentures (or any new Subordinated Debentures replacing
the Series A Subordinated Debentures as contemplated by the proviso to this
sentence) shall be applied to redeem the Series A Preferred Securities for cash
at the Redemption Price, PROVIDED that all or any portion of the principal
amount of
S-13
<PAGE>
Series A Subordinated Debentures repaid by Protective Life at maturity may be
reloaned to Protective Life, and not used for such redemption, if such new loan
is evidenced by Subordinated Debentures and, at the time of the issuance of the
new Subordinated Debentures that will evidence such new loan, and as determined
in the judgment of the Managing Member and PLC Capital's financial advisor,
selected by the Managing Member and who shall not be affiliated with the
Managing Member and shall be among the 30 largest investment banking firms,
measured by total capital, in the United States at the time, (i) Protective Life
is not the subject of a pending case under the United States Bankruptcy Code,
(ii) Protective Life is not in default on any Subordinated Debentures, (iii)
Protective Life has timely made all required monthly payments of interest on all
Subordinated Debentures for the immediately preceding 18 months, (iv) PLC
Capital is not in arrearage on payments of dividends on any Preferred
Securities, (v) Protective Life is expected to be able to make timely payment of
principal and interest on such new loan, (vi) such new loan is being made on
terms, and under circumstances, that are no less favorable to PLC Capital than
those that a lender would require for a similar loan to an unrelated party,
(vii) such new loan is being made at a rate of interest at least equal to or
greater than the interest rate on the Series A Subordinated Debentures, (viii)
such new loan is being made for a fixed term that is consistent with market
circumstances and Protective Life's financial condition, (ix) the senior
unsecured long-term debt of Protective Life is rated not less than BBB-(or the
equivalent) by Standard & Poor's Corporation or Baa3 (or the equivalent) by
Moody's Investors Services, Inc. (or if either of such rating organizations is
not then rating Protective Life's senior unsecured long-term debt, the
equivalent of such rating by any other "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act) and any subordinated long-term debt of
Protective Life or, if there is no such debt then outstanding, the Series A
Preferred Securities of such series, are rated not less than BBB-(or the
equivalent) by Standard & Poor's Corporation or Baa3 (or the equivalent) by
Moody's Investors Service, Inc. or the equivalent of either such rating by any
other "nationally recognized statistical rating organization", (x) the
Subordinated Debentures evidencing such new loan will not be convertible or
exchangeable into any equity interest of or in Protective Life or any of its
affiliates, (xi) such new loan shall not pay any contingent interest or other
interest determined by reference to, or otherwise participate in, the earnings
or profits of Protective Life or any of its affiliates, (xii) the interest
payable on such new loan will not exceed 175% of the dividend rate on the Series
A Preferred Securities, and (xiii) in any event, such new loan shall have a
final maturity date that is before the 50th anniversary of the original issuance
of the Series A Preferred Securities. If, at the maturity of the Series A
Subordinated Debentures, an amount less than the entire principal amount of the
Series A Subordinated Debentures is reloaned to Protective Life, the amount of
such principal not so reloaned shall be used to effect a partial redemption of
the Series A Preferred Securities, provided that, if a partial redemption would
result in a delisting of the Series A Preferred Securities, no amount of
principal may be reloaned to Protective Life, and the Series A Preferred
Securities shall be redeemed in whole. In the event that fewer than all the
outstanding Series A Preferred Securities are to be redeemed, the Series A
Preferred Securities to be redeemed will be selected as described under
"Book-Entry-Only Issuance; The Depository Trust Company" below.
OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable for cash, at the option of
PLC Capital, in whole or in part, at any time and from time to time, on or after
, 1999, upon not less than 30 nor more than 60 days' notice to the holders
of the Series A Preferred Securities, at the Redemption Price. In the event that
fewer than all the outstanding Series A Preferred Securities are to be so
redeemed, the Series A Preferred Securities to be redeemed will be selected as
described under "Book-Entry-Only Issuance; The Depository Trust Company" below.
PLC Capital will not redeem fewer than all the outstanding Series A Preferred
Securities unless all accumulated and unpaid dividends have been paid on all
Series A Preferred Securities for all monthly dividend periods terminating on or
prior to the date of redemption. In addition, if a partial redemption would
result in a delisting of the Series A Preferred Securities, PLC Capital may only
redeem the Series A Preferred Securities in whole.
At any time after the issuance of the Series A Preferred Securities, at the
option of PLC Capital the Series A Preferred Securities may be redeemed, in
whole (but not in part), upon not less than 30 nor
S-14
<PAGE>
more than 60 days' notice given within 180 days after the applicable change in
U.S. law or regulation or written change in interpretation of U.S. law or
regulation referred to below, for cash at the Redemption Price or in exchange
for Series A Subordinated Debentures having, at the time of exchange, (a) an
aggregate principal amount equal to $25 per Series A Preferred Security so
exchanged and (b) accrued and unpaid interest equal to any accumulated and
unpaid dividends (whether or not declared) at the date fixed for exchange on the
Series A Preferred Securities so exchanged if PLC Capital or Protective Life
shall have obtained an opinion of nationally recognized independent counsel
experienced in such matters to the effect that, as a result of a change in U.S.
law or regulation on or after the date of this Prospectus Supplement, or a
written change in interpretation or application of U.S. law or regulation, by
any legislative body, court or governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination) on or after such date, PLC Capital may be
considered an "investment company" under the 1940 Act (an "Investment Company
Act Event"); PROVIDED that PLC Capital may not exchange the Series A Preferred
Securities for Series A Subordinated Debentures pursuant to the foregoing unless
it shall have obtained an opinion of independent nationally recognized tax
counsel experienced in such matters to the effect that holders of the Series A
Preferred Securities will not recognize gain or loss for federal income tax
purposes as a result of such exchange.
In addition, at any time after the issuance of the Series A Preferred
Securities upon not less than 30 nor more than 60 days' notice given within 180
days after the applicable change in U.S. law or regulation or written change in
interpretation of U.S. law or regulation referred to below, Protective Life may
cause PLC Capital to redeem the Series A Preferred Securities in exchange for
Series A Subordinated Debentures having, at the time of exchange, (a) an
aggregate principal amount equal to $25 per Series A Preferred Security so
exchanged and (b) accrued and unpaid interest equal to accumulated and unpaid
dividends (whether or not declared) at the date fixed for exchange on the Series
A Preferred Securities so exchanged if Protective Life or PLC Capital shall have
received an opinion (the receipt of such opinion, a "Tax Event") of independent
nationally recognized tax counsel experienced in such matters to the effect
that, as a result of any change in U.S. law or regulation on or after the date
of this Prospectus Supplement, or a written change in interpretation or
application of U.S. law or regulation, by any legislative body, court or
governmental agency or regulatory authority (including the enactment of any
legislation and the publication of any judicial decision or regulatory
determination on or after such date), there is more than an insubstantial
increase in the risk that (i) Protective Life will be precluded from deducting
the interest on the Series A Subordinated Debentures for federal income tax
purposes, (ii) PLC Capital is subject to federal income tax with respect to the
interest received on the Series A Subordinated Debentures or (iii) PLC Capital
is subject to more than a DE MINIMIS amount of other taxes, duties or other
governmental charges; PROVIDED, however, that solely in the case of a Tax Event
under clause (iii) above, PLC Capital may not exchange the Series A Preferred
Securities for Series A Subordinated Debentures unless it shall have obtained an
opinion of independent nationally recognized tax counsel experienced in such
matters to the effect that holders of the Series A Preferred Securities will not
recognize gain or loss for federal income tax purposes as a result of such
exchange. Furthermore, Protective Life shall have the right, upon not less than
30 nor more than 60 days' notice given within 180 days after the applicable
change in U.S. law or regulation or written change in interpretation of U.S. law
or regulation referred to above, to cause PLC Capital to redeem the Series A
Preferred Securities for cash at the Redemption Price if Protective Life shall
have received an opinion (the receipt of such opinion, also a "Tax Event") of
independent nationally recognized tax counsel experienced in such matters that,
as a result of a change in U.S. law or regulation as described above, there is
more than an insubstantial increase in the risk that Protective Life would be
precluded from deducting the interest on the Series A Subordinated Debentures
for federal income tax purposes even if the Series A Preferred Securities were
exchanged for the Series A Subordinated Debentures as described above.
There can be no assurance that an Investment Company Act Event or a Tax
Event will not occur.
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REDEMPTION AND EXCHANGE PROCEDURES
After the date fixed for any exchange of the Series A Subordinated
Debentures for the Series A Preferred Securities, (i) the Series A Preferred
Securities will no longer be deemed to be outstanding, (ii) Depository Trust
Company ("DTC") or its nominee, as the record holder of the Series A Preferred
Securities, will exchange the global certificate or certificates representing
the Series A Preferred Securities for a registered global certificate or
certificates representing the Series A Subordinated Debentures to be delivered
upon such exchange, (iii) any certificates representing Series A Preferred
Securities not held by DTC or its nominee will be deemed to represent Series A
Subordinated Debentures having a principal amount equal to the stated liquidated
preference of such Series A Preferred Securities until such certificates are
presented to PLC Capital or its agent for exchange and (iv) all rights of the
holders of Series A Preferred Securities so exchanged will cease, except the
right of such holders to receive Series A Subordinated Debentures. If the Series
A Preferred Securities are exchanged for Series A Subordinated Debentures,
Protective Life has agreed to use its best efforts to have the Series A
Subordinated Debentures listed on the same exchange, if any, on which the Series
A Preferred Securities are listed.
If PLC Capital gives a notice of redemption for cash in respect of the
Series A Preferred Securities, then, by 12:00 noon, New York time, on the
redemption date, PLC Capital will either (i) irrevocably deposit with AmSouth
Bank N.A., as paying agent (the "Paying Agent") for the Series A Preferred
Securities, funds sufficient to pay the Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the holders thereof, including, if applicable, The Depository Trust Company
or a nominee thereof or (ii) pay the Redemption Price to such holders. See
"Book-Entry-Only Issuance; The Depository Trust Company." If such notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of holders of such Series A Preferred
Securities so called for redemption will cease, except the right of such holders
of such securities to receive the Redemption Price, but without interest, and
such securities will cease to be outstanding. In the event that any date fixed
for the redemption of Series A Preferred Securities is not a Business Day, then
payment of the redemption price payable on such date will be made on the next
succeeding Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day. In
the event that payment of the redemption price in respect of Series A Preferred
Securities is improperly withheld or refused and not paid either by PLC Capital
or Protective Life pursuant to the Guarantee, dividends on such securities will
continue to accumulate, at the then applicable rate, from the original
redemption date to the date of payment, in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
Redemption Price.
Subject to the foregoing and applicable law (including, without limitation,
U.S. federal securities laws), Protective Life or its subsidiaries may at any
time and from time to time purchase outstanding Series A Preferred Securities of
any series by tender, in the open market or by private agreement.
LIQUIDATION DISTRIBUTION
In the event of any voluntary or involuntary dissolution, liquidation or
winding-up of PLC Capital, before any payment or distribution of the assets of
PLC Capital shall be made to or set apart for the holders of any class or
classes of Membership Securities or any series of Preferred Securities ranking
junior to the Series A Preferred Securities as to distribution of assets upon
dissolution, liquidation or winding-up, the holders of the Series A Preferred
Securities shall be entitled to receive, together with the holders of every
other series of Preferred Securities outstanding, if any, ranking PARI PASSU
with the Series A Preferred Securities as to distribution of assets on
dissolution, liquidation or winding-up of PLC Capital ("Liquidation Parity
Securities"), an amount equal, in the case of the holders of the Series A
Preferred Securities, to the aggregate of the liquidation preference of $25 per
Series A Preferred Security and all accumulated and unpaid dividends (whether or
not declared) to the date of payment (the "Liquidation Distribution"), payable
in cash. If, upon any such dissolution, liquidation or winding up, the
Liquidation Distribution can be paid only in part because PLC Capital has
insufficient assets available to
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pay in full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on the Liquidation Parity Securities, then the amounts
payable directly by PLC Capital on the Series A Preferred Securities and on such
Liquidation Parity Securities shall be paid on a pro rata basis, so that
(i) (x) the aggregate amount paid as the Liquidation Distribution on
all Series A Preferred Securities bears to (y) the aggregate amount paid as
the liquidation distribution on all Liquidation Parity Securities the same
ratio as
(ii) (x) the aggregate Liquidation Distribution on all Series A
Preferred Securities bears to (y) the aggregate maximum liquidation
distributions on all Liquidation Parity Securities.
Pursuant to the L.L.C. Agreement, PLC Capital will automatically dissolve
and be liquidated (i) when the period fixed for the duration of PLC Capital
expires (I.E., December 31, 2094), (ii) upon the death, retirement, resignation,
expulsion, bankruptcy (as defined in Section 18-304 of the Delaware Limited
Liability Company Act) or dissolution of a holder of Common Securities or the
occurrence of any other event which terminates the continued membership of a
Common Securities holder in PLC Capital, unless, if there is more than one
Member remaining, the business of PLC Capital is continued by the consent of all
the remaining Members within ninety days following the occurrence of any such
event; (iii) upon the unanimous written consent of the Members; (iv) upon the
entry of a judicial decree of dissolution under Section 18-802 of the Delaware
Limited Liability Company Act or (v) upon a merger or consolidation of PLC
Capital other than as expressly provided in the L.L.C. Agreement. A merger or
consolidation of Protective Life into or with any other entity will not,
however, dissolve PLC Capital and the surviving entity will continue to hold the
Common Securities. Under the L.L.C. Agreement and the Guarantee, Protective Life
will covenant, to the extent permitted by law, that it will not voluntarily
dissolve, wind up or liquidate PLC Capital, or allow PLC Capital to be
dissolved, wound-up or liquidated, so long as any Preferred Securities are
outstanding. See "Description of the Guarantee -- Certain Covenants of the
Guarantor".
If a limited liability company organized under the laws of the State of
Delaware has any publicly traded limited liability company interests and is
treated as a corporation for U.S. federal income tax purposes, then, on
application by or for a member or the manager of such limited liability company,
the Delaware Court of Chancery shall (x) grant such relief as may be appropriate
to cause the limited liability company not to have any publicly traded limited
liability company interests or (y) decree the dissolution of the limited
liability company.
PERSONAL LIABILITY OF HOLDERS OF COMMON SECURITIES
Under the L.L.C. Agreement, Protective Life and a special purpose subsidiary
of Protective Life, in their capacities as holders of Common Securities, will be
liable for, and will pay (as additional capital contributions to PLC Capital),
the debts of and claims against PLC Capital (including tax obligations, but
excluding obligations in respect of the Series A Preferred Securities).
VOTING RIGHTS
Except as provided below and under "Description of the Guarantee --
Amendments and Assignment" and "Description of the Series A Subordinated
Debentures -- Miscellaneous," the holders of the Series A Preferred Securities
will have no voting rights.
If (i) PLC Capital fails to pay dividends in full on the Series A Preferred
Securities (whether or not funds are legally available therefor) for 18 monthly
dividend periods or (ii) Protective Life breaches any of its obligations under
the Series A Subordinated Debentures or any of its obligations under the
Guarantee (as defined in "Description of the Guarantee"), then the holders of
the outstanding Series A Preferred Securities, together with the holders of any
other series of Preferred Securities having the right to vote for the
appointment of a trustee in such event, acting as a single class, will be
entitled, by ordinary resolution passed by the holders of a majority in
liquidation preference (plus all accumulated and unpaid dividends) of such
Preferred Securities present in person or by proxy at a separate general meeting
of such holders convened for such purpose (or by written consent), to appoint
and authorize a trustee to enforce PLC Capital's rights as a creditor in respect
of the Series A Subordinated Debentures, to enforce the limited obligations
undertaken by Protective Life under the Guarantee and to declare and pay
dividends to the
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extent that funds are held by PLC Capital and legally available therefor. For a
description of rights and obligations under the Series A Subordinated
Debentures, including the right of Protective Life to extend the period to the
next interest payment date to up to 60 months (even if a trustee has been
appointed), see "Description of the Series A Subordinated Debentures." For
purposes of determining whether PLC Capital has failed to pay dividends in full
for 18 monthly dividend periods, dividends shall be deemed to remain in arrears,
notwithstanding any payments in respect thereof, until full cumulative dividends
have been or contemporaneously are declared and paid with respect to all monthly
dividend periods terminating on or prior to the date of payment of such full
cumulative dividends. Not later than 30 days after such entitlement arises, the
Managing Member will convene a separate general meeting for the above purpose.
If the Managing Member fails to convene such meeting within such 30-day period,
the holders of 10% in aggregate liquidation preference (plus all accumulated and
unpaid dividends) of the outstanding Series A Preferred Securities and such
other Preferred Securities will be entitled to convene such separate general
meeting. The provisions of the L.L.C. Agreement relating to the convening and
conduct of the general meetings of Members (as defined in the L.L.C. Agreement)
will apply with respect to any such separate general meeting. Any trustee so
appointed shall vacate office, subject to the terms of such other Preferred
Securities, if PLC Capital (or Protective Life pursuant to the Guarantee) shall
have paid in full all accumulated and unpaid dividends on the Series A Preferred
Securities (if the event that gave rise to such appointment was clause (i) of
this paragraph) or such breach by Protective Life shall have been cured (if the
event that gave rise to such appointment was clause (ii) of this paragraph).
If any resolution is proposed for adoption by the Members of PLC Capital
providing for, or the Managing Member proposes to take, any action that will (w)
amend or alter the provisions of the L.L.C. Agreement (including the Action
creating the Series A Preferred Securities) so as to adversely affect any rights
or powers of the Series A Preferred Securities or the holders thereof or result
in the authorization or issuance of any limited liability company interest in
PLC Capital ranking, as to dividends or upon dissolution, liquidation or
winding-up, senior to the Series A Preferred Securities, (x) result in the
dissolution, liquidation or winding-up of PLC Capital, (y) waive any rights of
PLC Capital under the Series A Subordinated Debentures or allow the Series A
Subordinated Debentures to be repurchased or prepaid prior to , 1999
(unless (i) there is an Event of Default relating to the bankruptcy of
Protective Life or certain similar events or there is any other Event of Default
thereunder and the Series A Subordinated Debentures are accelerated pursuant to
the request of the holders of 25% or more of the Series A Preferred Securities
or of a trustee appointed by the Holders of Series A Preferred Securities as
contemplated in the preceding paragraph or (ii) in connection with a redemption
occurring as a result of a Tax Event or an Investment Company Act Event) or (z)
modify (i) Section 2.6 of the L.L.C. Agreement which limits the business and
activity in which PLC Capital may engage, (ii) Section 7.1 of the L.L.C.
Agreement which absolutely prohibits transfers of Common Securities, (iii)
Section 3.3 of the L.L.C. Agreement which requires the holders of the Common
Securities to contribute amounts to PLC Capital such that the Common Securities
represent at all times not less than 21% of all interests in the capital,
income, gain, loss, deduction or credit of PLC Capital or (iv) Section 6.2 of
the L.L.C. Agreement pursuant to which the holders of the Common Securities
agree to be personally liable for and to pay all debts of and claims against PLC
Capital (excluding obligations in respect of the Preferred Securities), then the
holders of outstanding Series A Preferred Securities (and, in the case of a
resolution described in clause (w) above that would, to a like extent, adversely
affect the rights or powers of any Dividend Parity Securities or any Liquidation
Parity Securities, the holders of such Dividend Parity Securities or such
Liquidation Parity Securities, as the case may be, or, in the case of any
resolution described in clause (x) or (z) above, all Liquidation Parity
Securities) will be entitled to vote together as a class on such resolution (but
not on any other resolution) (i) at a separate meeting of such holders, (ii) at
the general meeting of Members called for the purpose of adopting such
resolution or (iii) without a meeting but in writing, and such resolution shall
not be effective except with the approval, in the case of clauses (i) and (ii),
of the holders of 66 2/3% in aggregate liquidation preference (plus all
accumulated and unpaid dividends) of such outstanding securities present in
person or by proxy at a meeting at which 66 2/3% in aggregate liquidation
preference (plus all
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accumulated and unpaid dividends) of such securities are so present or, in the
case of clause (iii), by the holders of 66 2/3% in aggregate liquidation
preference (plus all accumulated and unpaid dividends) of such securities.
PLC Capital will cause a notice of any meeting at which holders of the
Series A Preferred Securities are entitled to vote, or of any matter upon which
action by written consent is to be taken, to be mailed to each holder of record
of the Series A Preferred Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such holders are entitled to vote or of such matter on which
written consent is sought and (iii) instructions for the delivery of proxies or
written consents.
Notwithstanding that holders of Series A Preferred Securities are entitled
to vote under any of the circumstances described above, any of the Series A
Preferred Securities and such other Preferred Securities entitled to vote with
such Series A Preferred Securities as a single class outstanding at such time
that are owned by Protective Life or any Affiliate (as defined in the L.L.C.
Agreement), either directly or indirectly, shall not be entitled to vote and
shall, for the purposes of such vote, be treated as if they were not
outstanding.
No vote of the holders of the Series A Preferred Securities will be required
for PLC Capital to redeem and cancel Series A Preferred Securities in accordance
with the L.L.C. Agreement (including the Actions).
BOOK-ENTRY-ONLY ISSUANCE; THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC"), New York, New York will act as
securities depository for the Series A Preferred Securities. The information in
this section concerning DTC and DTC's book-entry system is based upon
information obtained from DTC.
The Series A Preferred Securities will be issued initially as
fully-registered securities registered in the name of Cede & Co. (DTC's nominee)
in substantially the form attached as an exhibit to the Registration Statement
of which this Prospectus Supplement forms a part. One or more fully-registered
Series A Preferred Security certificates will be issued, representing in the
aggregate the total number of Series A Preferred Securities, and will be
deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations ("Direct Participants"). DTC is owned by a
number of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
participants are on file with the Securities and Exchange Commission.
Purchases of Series A Preferred Securities under the DTC system must be made
by or through Direct Participants, who will receive a credit for the Series A
Preferred Securities on DTC's records. The ownership interest of each actual
purchaser of each Series A Preferred Security (a "Beneficial Owner") is in turn
to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the Beneficial Owner
purchased Series A Preferred
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Securities. Transfers of ownership interests in the Series A Preferred
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in Series A Preferred
Securities, except in the event that use of the book-entry system for the Series
A Preferred Securities is discontinued.
To facilitate subsequent transfers, all Series A Preferred Securities
deposited by Participants with DTC are registered in the name of DTC's nominee,
Cede & Co. The deposit of Series A Preferred Securities with DTC and their
registration in the name of Cede & Co. effect no change in beneficial ownership.
DTC has no knowledge of the actual Beneficial Owners of the Series A Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such Series A Preferred Securities are credited, which may or
may not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co., as record holder of the
Series A Preferred Securities. If less than all of the Series A Preferred
Securities are being redeemed, DTC's practice is to determine by lot the amount
of the interest of each Direct Participant in such series to be redeemed.
Although voting with respect to the Series A Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor Cede & Co.
will consent or vote with respect to Series A Preferred Securities. Under its
usual procedures, DTC mails an Omnibus Proxy to PLC Capital as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consent or voting
rights to those Direct Participants to whose accounts the Series A Preferred
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Dividend payments on the Series A Preferred Securities will be made to the
Paying Agent with instructions to transfer such payments to DTC. DTC's practice
is to credit Direct Participants' accounts on the relevant payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payments on such payable date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC or PLC Capital, subject to any statutory regulatory
requirements as may be in effect from time to time. Payment of dividends to DTC
is the responsibility of PLC Capital, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to PLC Capital. Under such circumstances, in the event that a successor
securities depository is not obtained, Series A Preferred Security certificates
are required to be printed and delivered.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
AmSouth Bank NA will act as registrar, transfer agent and Paying Agent for
the Series A Preferred Securities.
Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of PLC Capital, but upon payment (with the giving
of such indemnity as PLC Capital or Protective Life may require) in respect of
any tax or other governmental charges which may be imposed in relation to it.
PLC Capital will not be required to register or cause to be registered the
transfer of Series A Preferred Securities after such Series A Preferred
Securities have been called for redemption.
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MISCELLANEOUS
Except as described in this Prospectus Supplement, PLC Capital is not
subject to any mandatory redemption or sinking fund provisions with respect to
the Series A Preferred Securities. Holders of Series A Preferred Securities have
no preemptive rights.
The Common Securities are owned by the Managing Member and one of its
wholly-owned subsidiaries. The Common Securities are not transferable. The
Managing Member and the other holder of the Common Securities are required,
pursuant to the terms of the L.L.C. Agreement, to contribute to PLC Capital
amounts such that the Common Securities at all times represent at least 21% of
all interests in the capital, income, gain, loss, deduction and credit of PLC
Capital.
DESCRIPTION OF THE GUARANTEE
Set forth below is condensed information concerning the Guarantee which will
be executed and delivered by Protective Life for the benefit of the holders from
time to time of the Series A Preferred Securities. The summary set forth below
addresses the material terms of the Guarantee but is subject to, and qualified
in its entirety by reference to, the text of the Guarantee Agreement pursuant to
which the Guarantee will be made, a copy of which has been filed as an exhibit
to the Registration Statement of which this Prospectus Supplement is part.
GENERAL
Protective Life will irrevocably and unconditionally agree, to the extent
set forth herein, to pay the Guarantee Payments (defined below) (except to the
extent paid by PLC Capital), as and when due, regardless of any defense, right
of set-off or counterclaim which PLC Capital may have or assert. The following
payments to the extent not paid by PLC Capital (the "Guarantee Payments") will
be subject to the Guarantee (without duplication): (i) any accumulated and
unpaid dividends that have been theretofore declared on the Series A Preferred
Securities out of funds held by PLC Capital and legally available therefor; (ii)
the redemption price (including all accumulated and unpaid dividends whether or
not declared) payable, out of funds held by PLC Capital and legally available
therefor, with respect to any Series A Preferred Securities called for
redemption by PLC Capital; and (iii) in the event of any dissolution,
liquidation or winding-up of PLC Capital, the lesser of (a) the aggregate of the
liquidation preference and all accrued and unpaid dividends (whether or not
declared) to the date of payment and (b) the amount of remaining assets of PLC
Capital legally available to holders of Series A Preferred Securities. In
addition, Protective Life will unconditionally and irrevocably guarantee, in the
event of any exchange by PLC Capital of Series A Preferred Securities for Series
A Subordinated Debentures as described herein, the delivery of a registered
global certificate or certificates representing the proper amount of Series A
Subordinated Debentures to DTC or such other entity or person as shall at the
date of exchange be acting as securities depository for the Series A Preferred
Securities. Protective Life's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by Protective Life to the
holders of Series A Preferred Securities or by causing PLC Capital to pay such
amounts to such holders.
The Guarantee is not a guarantee that any particular dividend or amount on
dissolution, liquidation or winding up will be paid; rather, the Guarantee is
solely a guarantee of payment of dividends, if any, that are in fact declared
out of funds legally available therefor, of the redemption price payable, out of
funds held by PLC Capital and legally available therefor, with regard to any
Series A Preferred Securities called for redemption by PLC Capital and of
amounts, if any, available for distribution to the holders of Series A Preferred
Securities upon dissolution, liquidation or winding-up after satisfaction of all
creditors of PLC Capital.
CERTAIN COVENANTS OF PROTECTIVE LIFE
In the Guarantee, Protective Life will covenant that, so long as any Series
A Preferred Securities remain outstanding, neither Protective Life, nor any
majority-owned subsidiary of Protective Life, shall declare or pay any dividend
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or make any guarantee payments with respect to the
foregoing (other than (i) payments under the Guarantee or any other guarantee of
any other series of Preferred Securities ranking PARI PASSU with the Series A
Preferred Securities, (ii) dividends or guarantee payments to
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Protective Life or (iii) redemptions or purchases pursuant to Protective Life's
Share Purchase Rights Plan described under "Description of Capital Stock of
Protective Life -- Junior Preferred Stock" in the Prospectus, or any successor
to such Plan) if at such time (x) Protective Life shall have extended the period
to the next interest payment date under the Series A Subordinated Debentures, or
shall be in default with respect to its payment or other obligations under the
Guarantee, (y) there shall have occurred any Event of Default or event that,
with the giving of notice or the lapse of time or both, would constitute an
Event of Default under the Subordinated Indenture or (z) there shall exist any
arrearage in the payment of accumulated dividends on the Series A Preferred
Securities.
Pursuant to the Guarantee, Protective Life will agree, to the extent
permitted by law, that, so long as any Series A Preferred Securities are
outstanding, (i) it shall maintain ownership, directly or indirectly, of 100% of
the Common Securities, (ii) it shall not voluntarily dissolve, liquidate or
wind-up PLC Capital, or permit PLC Capital to be dissolved, liquidated or
wound-up, and (iii) it shall timely perform all of its respective duties under
the L.L.C. Agreement.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Series A Preferred Securities (in which case no vote will be
required), the Guarantee may be changed only with the prior approval of the
holders of not less than 66 2/3% in liquidation preference of the Series A
Preferred Securities by agreement in writing or present in person or by proxy at
a separate general meeting and voting as a single class. All guarantees and
agreements contained in the Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of Protective Life and shall inure to
the benefit of the holders of the Series A Preferred Securities. The quorum for
any such meeting and the determination of the Series A Preferred Securities
entitled to vote are set forth under "Description of the Series A Preferred
Securities -- Voting Rights" above.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon full
payment of the Redemption Price (including all accumulated arrears and accruals
of unpaid dividends) of all Series A Preferred Securities, upon full payment of
the amounts payable upon liquidation of PLC Capital or upon exchange of all
Series A Preferred Securities for Series A Subordinated Debentures as described
above. The Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of the Series A Preferred Securities must
restore payment of any sums paid under the Series A Preferred Securities or the
Guarantee.
STATUS OF THE GUARANTEE
The Guarantee will rank PARI PASSU with the Series A Subordinated Debentures
and, accordingly, will be subordinate and junior in right of payment to all
Senior Indebtedness as such term is defined in the Subordinated Indenture. See
"Description of Debt Securities of Protective Life -- Subordination under the
Subordinated Indenture" in the accompanying Prospectus.
The Guarantee will constitute a guarantee of payment and not of collection.
A holder of Series A Preferred Securities may enforce the Guarantee directly
against Protective Life, and Protective Life will waive any right or remedy to
require that any action be brought against PLC Capital or any other person or
entity before proceeding against Protective Life. The Guarantee will not be
discharged except by payment of the Guarantee Payments in full to the extent not
paid by PLC Capital and by complete performance of all obligations under the
Guarantee.
GOVERNING LAW
The Guarantee will be governed and construed in accordance with the laws of
the State of New York.
DESCRIPTION OF THE SERIES A SUBORDINATED DEBENTURES
Set forth below is a summary of the terms of the Series A Subordinated
Debentures that will evidence the loans to be made by PLC Capital to Protective
Life of the proceeds of (i) the Series A
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Preferred Securities and (ii) the Common Securities and related capital
contributions ("Common Securities Payments"). Series A Subordinated Debentures
will be issued under the subordinated indenture, dated , 1994,
between Protective Life and AmSouth Bank, N.A., as Trustee (the "Subordinated
Indenture"). See "Description of Debt Securities of Protective Life" in the
accompanying Prospectus and the description below for a summary of the material
terms of the Subordinated Indenture. The summary set forth below and the summary
of the terms of the Subordinated Indenture in the accompanying Prospectus
together address the material terms of the Series A Subordinated Debentures and
the Subordinated Indenture but are subject to, and qualified in their entirety
by reference to, the text of the Series A Subordinated Debentures and the
Subordinated Indenture, forms of which have been filed as exhibits to the
Registration Statement of which this Prospectus Supplement forms a part.
GENERAL
Pursuant to the Subordinated Indenture, Protective Life will issue Series A
Subordinated Debentures to PLC Capital in an aggregate principal amount of
$ , such amount being the sum of (i) the aggregate stated liquidation
preference of the Series A Preferred Securities issued and sold by PLC Capital
and (ii) the Common Securities Payments.
The entire principal amount of the Series A Subordinated Debentures shall
become due and payable (together with any accrued and unpaid interest thereon)
on May , 2024 (the "Maturity Date"), subject to relending under conditions
described under "Terms of the Series A Preferred Securities -- Mandatory
Redemption upon Repayment of Series A Subordinated Debentures at Maturity." Upon
exchange of the Series A Preferred Securities for Series A Subordinated
Debentures, (i) the Series A Subordinated Debentures will no longer be subject
to mandatory prepayment upon the dissolution, winding-up or liquidation of PLC
Capital, (ii) the Series A Subordinated Debentures will not be subject to an
election by Protective Life to exchange Series A Subordinated Debentures for new
debentures or to repay the Series A Subordinated Debentures and re-borrow the
proceeds from such repayment, (iii) Protective Life will use its best efforts to
have the Series A Subordinated Debentures listed on the same exchange on which
the Series A Preferred Securities are listed and (iv) the Subordinated Indenture
or Series A Subordinated Debentures may, thereafter, be modified or amended with
the consent of not less than 66 2/3% in principal amount of the Series A
Subordinated Debentures at the time outstanding, PROVIDED, however, that no such
modification or amendment may, without the consent of the holder of each Series
A Subordinated Debenture affected thereby, (a) extend the stated maturity of the
principal of any Series A Subordinated Debenture, or reduce the principal amount
thereof or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof or change the currency in which
the principal thereof or interest thereon is payable or impair the right to
institute suit for the enforcement of any payment on any Series A Subordinated
Debenture when due or (b) reduce the aforesaid principal amount of Series A
Subordinated Debentures the consent of the holders of which is required for any
such modification.
MANDATORY PREPAYMENT
If PLC Capital redeems Series A Preferred Securities in cash for the
Redemption Price in accordance with the terms thereof, the Series A Subordinated
Debentures will become due and payable in a principal amount equal to the
aggregate stated liquidation preference of the Series A Preferred Securities so
redeemed (together with accrued interest on such principal amount to the date of
redemption). Any payment pursuant to this provision shall be made prior to 12:00
noon, New York time, on the date of such redemption or at such other time on
such earlier date as PLC Capital and Protective Life shall agree.
OPTIONAL PREPAYMENT
Protective Life shall have the right to prepay the Series A Subordinated
Debentures, without premium or penalty, in whole or in part (together with any
accrued but unpaid interest) at any time on or after , 1999.
S-23
<PAGE>
INTEREST
The Series A Subordinated Debentures shall bear interest at an annual rate
of % from , 1994 until maturity. Such interest shall be payable on
the last day of each calendar month of each year, commencing May , 1994.
Interest will be computed on the basis of twelve 30-day months and a 360-day
year and, for any interest period that is shorter than a full calendar month,
will be calculated on the basis of the actual number of days elapsed in such
period. If any date on which interest is payable on the Series A Subordinated
Debentures is not a Business Day, then payment of the interest due on such date
may be made on the next succeeding Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date; PROVIDED, however, that Protective Life shall have the
right at any time or times during the term of the Series A Subordinated
Debentures, so long as Protective Life is not in default in the payment of
interest on the Series A Subordinated Debentures, to extend the interest payment
period to the next interest payment date by a period (not to exceed 60 months
from the last date on which interest was paid in full) at the end of which
Protective Life shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified for the Series A Subordinated Debentures
to the extent permitted by applicable law); and PROVIDED FURTHER that, during
any such extended interest period, or at any time during which there is an
uncured Default or Event of Default under the Series A Subordinated Debentures,
Protective Life shall not pay any dividends on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its shares of capital stock
or make any guarantee payments with respect to the foregoing (other than (a)
redemptions or purchases pursuant to Protective Life's Share Purchase Rights
Plan described under "Description of Capital Stock of Protective Life -- Junior
Preferred Stock" in the Prospectus, or any successor to such Plan and (b)
payments under any guarantee of the Series A Preferred Securities or any other
series of Preferred Securities ranking PARI PASSU with the Series A Preferred
Securities). Protective Life shall give PLC Capital and the holders of the
Series A Preferred Securities not less than five Business Days' prior notice of
its selection of such extended interest payment period.
METHOD AND DATE OF PAYMENT
Each payment by Protective Life of principal and interest on the Series A
Subordinated Debentures shall be made to PLC Capital in United States Dollars at
such place and to such account as may be designated by PLC Capital.
SET-OFF
Notwithstanding anything to the contrary in the Subordinated Indenture or
the Series A Subordinated Debentures, Protective Life shall have the right to
set-off any payment it is otherwise required to make thereunder with and to the
extent Protective Life has theretofore made, or is concurrently on the date of
such payment making, a payment under the Guarantee.
SUBORDINATION
The Subordinated Indenture will provide that Protective Life and PLC Capital
covenant and agree that each of the Series A Subordinated Debentures is
subordinate and junior in right of payment to all Senior Indebtedness as
provided in the Subordinated Indenture. The Subordinated Indenture defines the
term "Senior Indebtedness" as the principal, premium, if any, and interest on
(i) all indebtedness of Protective Life, whether outstanding on the date of the
Series A Subordinated Debentures or thereafter created, incurred or assumed,
which is for money borrowed, or evidenced by a note or similar instrument given
in connection with the acquisition of any business, properties or assets,
including securities, (ii) any indebtedness of others of the kinds described in
the preceding clause (i) for the payment of which Protective Life is responsible
or liable as guarantor or otherwise and (iii) amendments, renewals, extensions
and refundings of any such indebtedness, unless in any instrument or instruments
evidencing or securing such indebtedness or pursuant to which the same is
outstanding, or in any such amendment, renewal, extension or refunding, it is
expressly provided that such indebtedness is not superior in right of payment to
the Series A Subordinated Debentures. The Senior Indebtedness shall
S-24
<PAGE>
continue to be Senior Indebtedness and entitled to the benefits of the
subordination provisions irrespective of any amendment, modification or waiver
of any term of the Senior Indebtedness or extension or renewal of the Senior
Indebtedness. For a more detailed description of the subordination provisions
set forth in the Subordinated Indenture, see "Description of Debt Securities of
Protective Life -- Subordination under the Subordinated Indenture" in the
accompanying Prospectus.
COVENANTS
In the Series A Subordinated Debentures, Protective Life will agree that, so
long as the Series A Preferred Securities are outstanding, (i) it shall not
declare or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, or make any
guarantee payments with respect to the foregoing (other than (a) redemptions or
purchases pursuant to Protective Life's Share Purchase Rights Plan described
under "Description of Capital Stock of Protective Life -- Junior Preferred
Stock" in the Prospectus, or any successor to such Plan and (b) payments under
any guarantee of the Series A Preferred Securities or any other series of
Preferred Securities ranking PARI PASSU with the Series A Preferred Securities)
if at such time (x) there shall have occurred any Event of Default or event (a
"Default") that, with the giving of notice or the lapse of time or both, would
constitute an Event of Default or (y) Protective Life shall be in default with
respect to its payment or other obligations under any guarantee of the Series A
Preferred Securities, (ii) it shall maintain ownership, directly or indirectly,
of all of the Common Securities and (iii) it shall timely perform all of its
respective duties under the L.L.C. Agreement.
Protective Life also will agree (i) that its obligations under the Series A
Subordinated Debentures will also be for the benefit of the holders from time to
time of the Series A Preferred Securities and that such holders or a trustee
acting on behalf of such holders will be entitled to enforce the Series A
Subordinated Debentures directly against Protective Life as third party
beneficiaries of Protective Life's obligations thereunder, and (ii) not to
consolidate with or merge into another entity or permit another entity to
consolidate with or merge into it unless (a) at such time no default or Event of
Default has occurred and is continuing, or would occur as a result of such
merger and (b) Protective Life is the survivor of such merger or the entity
formed by or resulting from such merger shall expressly assume payment of the
principal of and premium, if any, and interest on the Series A Subordinated
Debentures.
EVENTS OF DEFAULT
If an Event of Default (as defined in the Subordinated Indenture and
described in the accompanying Prospectus) shall occur and be continuing, PLC
Capital will have the right to declare the principal of and the interest on the
Series A Subordinated Debentures (including any interest subject to an extension
of the interest payment period) and any other amounts payable on the Series A
Subordinated Debentures to be forthwith due and payable, whereupon the Series A
Subordinated Debentures and any other amounts payable in respect of the Series A
Subordinated Debentures under the Series A Subordinated Debentures or the
Subordinated Indenture shall be forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which will be waived by
Protective Life, and PLC Capital will have the right to enforce its other rights
as a defaulted creditor with respect to the Series A Subordinated Debentures,
subject to the subordination provisions thereof. See "Description of Debt
Securities of Protective Life -- Events of Default, Notice and Certain Rights on
Default" in the accompanying Prospectus. Under the terms of the Series A
Preferred Securities, the holders of outstanding Series A Preferred Securities
will have the rights referred to under "Terms of the Series A Preferred
Securities -- Voting Rights", including the right to appoint a trustee, which
trustee shall be authorized to exercise PLC Capital's rights to accelerate the
principal amount of the Series A Subordinated Debentures and to enforce PLC
Capital's other rights under the Series A Subordinated Debentures. Because the
Series A Subordinated Debentures will be for the benefit of the holders of
Series A Preferred Securities, PLC Capital will agree that it will declare
principal of and interest on the Series A Subordinated Debentures due and
payable in the event of an interest payment or covenant Event of Default if, and
only if, so directed by holders of 25% or more of the Series A Preferred
Securities, or by a trustee appointed by such holders as a result of an
arrearage in dividend payments on the Series A Preferred Securities.
S-25
<PAGE>
MISCELLANEOUS
Protective Life shall have the right at all times to assign any of its
rights or obligations under the Series A Subordinated Debentures to a direct or
indirect wholly-owned subsidiary of Protective Life; PROVIDED, HOWEVER, that, in
the event of any such assignment, Protective Life shall remain jointly and
severally liable for all such obligations. PLC Capital may not assign any of its
rights under the Series A Subordinated Debentures, other than in connection with
a merger or consolidation or sale of assets or exchange permitted under the
terms of the Series A Preferred Securities. Subject to the foregoing, the Series
A Subordinated Debentures shall be binding upon and inure to the benefit of
Protective Life and PLC Capital and their respective successors and assigns. Any
assignment by Protective Life or PLC Capital in contravention of such provisions
will be null and void.
The Series A Subordinated Debentures and the Subordinated Indenture will be
governed by and construed in accordance with the internal laws of the State of
New York.
The Series A Subordinated Debentures may be amended by mutual consent of the
parties in the manner the parties shall agree; PROVIDED, HOWEVER, that, so long
as any of the Series A Preferred Securities remain outstanding, no such
amendment shall be made that adversely affects the holders of the Series A
Preferred Securities, no termination of the Series A Subordinated Debentures
shall occur, and no Event of Default or compliance with any covenant under the
Series A Subordinated Debentures may be waived by PLC Capital, without the prior
approval of the holders of at least 66 2/3% in liquidation preference of all
Series A Preferred Securities then outstanding, in writing or at a duly
constituted meeting of such holders.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material U.S. federal income tax
considerations relevant to the purchase, ownership and disposition of the Series
A Preferred Securities by a beneficial owner acquiring Series A Preferred
Securities on their original issue at the original offering price who is (i) an
individual citizen or a resident of the United States, (ii) a corporation or
partnership created or organized in or under the laws of the United States or
any state thereof or the District of Columbia or (iii) an estate or trust
subject to United States federal income taxation without regard to the source of
its income (a "United States Person"). The statements of law or legal conclusion
set forth in this summary constitute the opinion of Debevoise & Plimpton,
special counsel to Protective Life and PLC Capital. This summary does not
address potential tax consequences to a purchaser that is not a United States
Person. Neither PLC Capital nor Protective Life is required to pay any
additional amounts with respect to payments of dividends on the Series A
Preferred Securities if any withholding or similar taxes are imposed on any such
dividends; accordingly, any such taxes would reduce the amounts that would be
received by any beneficial owner that is not a United States Person. PROSPECTIVE
PURCHASERS OF THE SERIES A PREFERRED SECURITIES THAT ARE NOT UNITED STATES
PERSONS ARE URGED TO CONSULT THEIR TAX ADVISORS.
This summary does not purport to address all potential tax consequences that
may be applicable to a beneficial owner of a Series A Preferred Security, and is
not intended to be wholly applicable to all categories of investors (including
insurance companies, banks, tax-exempt organizations, dealers in securities and
persons acquiring Series A Preferred Securities as a straddle or hedge or as
part of a "conversion transaction") or persons whose functional currency is not
the United States dollar. This discussion is based upon the United States
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
(including proposed Treasury Regulations), Internal Revenue Service rulings and
pronouncements and judicial decisions now in effect, all of which are subject to
change at any time. Such changes may be applied retroactively in a manner that
could cause tax consequences to vary substantially from the consequences
described below, possibly adversely affecting a beneficial owner of a Series A
Preferred Security. These authorities are subject to various interpretations and
it is therefore possible that the federal income tax treatment of the Series A
Preferred Securities may differ from the treatment described below.
S-26
<PAGE>
PROSPECTIVE PURCHASERS OF SERIES A PREFERRED SECURITIES ARE ADVISED TO
CONSULT THEIR OWN TAX ADVISORS IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS
TO THE FEDERAL TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF
SERIES A PREFERRED SECURITIES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR
FOREIGN TAX LAWS.
INCOME FROM SERIES A PREFERRED SECURITIES
PLC Capital will be treated as a partnership for federal income tax
purposes. Each beneficial owner of a Series A Preferred Security (a
"Securityholder") will be required to include in gross income its distributive
share of PLC Capital's net income. PLC Capital anticipates that such income will
generally not exceed dividends received on a Series A Preferred Security, except
in limited circumstances as described under "-- Potential Extension of Payment
Period" and "-- Information Returns." Any amount so included in a
Securityholder's gross income will increase its tax basis in the Series A
Preferred Securities, and the amount of cash dividends to the Securityholder
will reduce its tax basis in the Series A Preferred Securities. No portion of
such income will be eligible for the dividends received deduction.
PLC Capital does not presently intend to make an election under section 754
of the Code. In the event no such election is made, a subsequent purchaser of
Series A Preferred Securities may not be permitted to adjust its taxable income
from PLC Capital to reflect any difference between its purchase price for the
Series A Preferred Securities and PLC Capital's underlying tax basis in its
assets.
SALE OR REDEMPTION OF SERIES A PREFERRED SECURITIES
Gain or loss will be recognized on a sale of Series A Preferred Securities
(including a distribution of cash in redemption of all of a Securityholder's
Series A Preferred Securities) equal to the difference between the amount
realized and the Securityholder's tax basis for the Series A Preferred
Securities sold or so redeemed. Gain or loss recognized by a Securityholder on
the sale or exchange of a Series A Preferred Security held for more than one
year will generally be taxable as long-term capital gain or loss. See "--Market
Discount and Premium" below.
POTENTIAL EXTENSION OF PAYMENT PERIOD
Under the terms of the Series A Subordinated Debentures, Protective Life may
be permitted to extend the interest payment period to up to 60 months. In the
event that Protective Life exercises this right, Protective Life may not, among
other things, declare dividends on any share of its preferred or common stock.
In the event that the payment period is extended, PLC Capital will continue to
accrue income equal to the amount of the interest payment due at the end of the
extended payment period, based on a constant yield method, over the length of
the extended payment period.
Accrued income for any month will be allocated by PLC Capital to
Securityholders of record on the record date for dividends in respect of such
month (whether or not dividends are actually paid). Securityholders of record
during an extended interest payment period should include in gross income
amounts in respect of interest so allocated to them in advance of the receipt of
cash. The tax basis of a Series A Preferred Security will be increased by any
such amounts that are included in income without a receipt of cash, and will be
decreased when such cash is subsequently received from PLC Capital.
EXCHANGE OF SERIES A PREFERRED SECURITIES FOR SERIES A SUBORDINATED DEBENTURES
Upon the occurrence of an Investment Company Act Event or a Tax Event, as
described under "Description of the Series A Preferred Securities -- Optional
Redemption," PLC Capital may distribute the Series A Subordinated Debentures (or
beneficial interests therein) in exchange for, and liquidation of, the Series A
Preferred Securities. Prior to any exchange following an Investment Company Act
Event, PLC Capital is required to obtain an opinion of independent nationally
recognized tax counsel experienced in such matters to the effect that a holder
of Series A Preferred Securities will not recognize gain or loss for federal
income tax purposes as a result of such exchange. If the exchange occurs
following a Tax Event that relates to the deductibility by Protective Life of
interest payable on the Series A Subordinated Debentures and PLC Capital has not
become subject to Federal income tax, such exchange would be treated as a
non-taxable exchange to a Securityholder. In the event of a non-taxable
exchange, such
S-27
<PAGE>
Securityholder would have an aggregate tax basis in the Series A Subordinated
Debentures received equal to such Securityholder's aggregate tax basis in its
Series A Preferred Securities. A Securityholder's holding period for the Series
A Subordinated Debentures so received will include the period for which the
Series A Preferred Securities were held by such Securityholder. If a Tax Event
has occurred and PLC Capital has become subject to federal income tax with
respect to interest received on the Series A Subordinated Debentures, the
exchange will be taxable to a Securityholder, who will recognize gain or loss
measured by the difference between such Securityholder's basis in its Series A
Preferred Securities and the value of the Series A Subordinated Debentures
received in exchange therefor. In such a case, the holding period of a
Securityholder for the Series A Subordinated Debentures received in the exchange
will not include the period in which the Series A Preferred Securities were
held.
After any exchange of Series A Preferred Securities for Series A
Subordinated Debentures, holders of the Series A Subordinated Debentures
(including those otherwise using a cash basis method of accounting) should
include interest on the Series A Subordinated Debentures in income as it
accrues, based on a constant yield method, before the receipt of payments of
interest, including in circumstances where Protective Life has extended the
interest payment period. See "--Potential Extension of Payment Period". If
issuance costs of the Series A Subordinated Debentures are determined to be
expenses of PLC Capital, the issue price of the Series A Subordinated Debentures
could be treated as being less than the stated principal amount thereof, in
which case the amount of interest that a holder of Series A Subordinated
Debentures would be required to include in income could exceed the amount of
stated interest thereon. Such holder's tax basis in the Series A Subordinated
Debentures will be increased by accrued interest previously included in income
by such holder and reduced by the payment of such interest. Gain or loss will be
recognized on the sale, exchange or retirement of Series A Subordinated
Debentures equal to the difference between the amount realized and such holder's
tax basis in the Series A Subordinated Debentures sold, exchanged or retired.
Gain or loss recognized by a holder on the sale, exchange or retirement of
Series A Subordinated Debentures held for more than one year will generally be
taxable as long-term capital gain or loss. See "--Market Discount and Premium".
MARKET DISCOUNT AND PREMIUM
If a Securityholder receives Series A Subordinated Debentures in exchange
for Series A Preferred Securities in a transaction in which gain or loss is
recognized (see "-- Exchange of Series A Preferred Securities for Series A
Subordinated Debentures"), such holder may have market discount or acquisition
premium with respect to the Series A Subordinated Debentures. Securityholders
(other than initial purchasers who acquire Series A Preferred Securities at
their original offering price) may be considered to have market discount or
acquisition premium under certain circumstances and are advised to consult their
own tax advisors.
INFORMATION RETURNS
The Managing Member will furnish each Securityholder with a Schedule K-1
setting forth such Securityholder's allocable share of income within 90 days
after the close of PLC Capital's taxable year. In preparing this information,
the Managing Member will use various accounting and reporting conventions to
determine a Securityholder's allocable share of income. See "-- Potential
Extension of Payment Period". If such conventions were successfully challenged
by the Internal Revenue Service, the distributive share of PLC Capital's income
allocable to Series A Preferred Securities in respect of a month in which such
Series A Preferred Securities are sold may be allocated between the seller and
purchaser on some other basis. Any amount so allocated to the Securityholder,
whether as seller or purchaser, would be includible in the Securityholder's
income and would increase the Securityholder's tax basis in its Series A
Preferred Securities.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to PLC Capital (a) the name, address and taxpayer
identification number of the beneficial owner and the nominee; (b) whether the
beneficial owner is (i) a person that is not a United States Person, (ii) a
foreign government, an international organization or any wholly-owned agency or
instrumentality of either of the foregoing, or (iii) a tax-exempt entity; (c)
the amount and description of Series A Preferred
S-28
<PAGE>
Securities held, acquired or transferred for the beneficial owner; and (d)
certain information including the dates of acquisitions and transfers, means of
acquisitions and transfers, and acquisition cost for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are a United
States Person and certain information on Series A Preferred Securities they
acquire, hold or transfer for their own account. A penalty of $50 per failure
(up to a maximum of $100,000 per calendar year) is imposed by the Code for
failure to report such information to PLC Capital. The nominee is required to
supply the beneficial owner of the Series A Preferred Securities with the
information furnished to PLC Capital.
ERISA MATTERS
PLC Capital, Protective Life and other affiliates of PLC Capital or
Protective Life may each be considered a "party in interest" (within the meaning
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or
a "disqualified person" (within the meaning of Section 4975 of the Code) with
respect to many employee benefit plans ("Plans") that are subject to ERISA. The
purchase and/or holding of Series A Preferred Securities or Series A
Subordinated Debentures by a Plan that is subject to the fiduciary
responsibility provisions of ERISA or the prohibited transaction provisions of
Section 4975 of the Code (including individual retirement arrangements and other
plans described in Section 4975(e)(1) of the Code) and with respect to which PLC
Capital, Protective Life or any other affiliate of PLC Capital or Protective
Life is a service provider (or otherwise is a party in interest or a
disqualified person) may constitute or result in a prohibited transaction under
ERISA or Section 4975 of the Code, unless such Series A Preferred Securities or
Series A Subordinated Debentures, are acquired pursuant to and in accordance
with an applicable exemption, such as Prohibited Transaction Class Exemption
("PTCE") 84-14 (an exemption for certain transactions determined by an
independent qualified professional asset manager), PTCE 91-38 (an exemption for
certain transactions involving bank collective investment funds) or PTCE 90-1
(an exemption for certain transactions involving insurance company pooled
separate accounts). Any pension or other employee benefit plan proposing to
acquire any Series A Preferred Securities should consult with its counsel.
S-29
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
PLC Capital has agreed to sell to each of the Underwriters named below, and each
of the Underwriters, for whom Goldman, Sachs & Co., Dean Witter Reynolds Inc.,
Kidder, Peabody & Co. Incorporated and The Robinson-Humphrey Company, Inc. (the
"Representatives") are acting as representatives, has severally agreed to
purchase from PLC Capital, the respective number of Series A Preferred
Securities set forth opposite its name below.
<TABLE>
<CAPTION>
NUMBER OF
SERIES A
UNDERWRITERS PREFERRED SECURITIES
- - - ---------------------------------------------------------------------------------- --------------------
<S> <C>
Goldman, Sachs & Co...............................................................
Dean Witter Reynolds Inc..........................................................
Kidder, Peabody P Co. Incorporated................................................
The Robinson-Humphrey Company, Inc................................................
Total.....................................................................
--------
--------
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all the Series A Preferred
Securities offered hereby, if any are taken.
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $[ ] per Series A Preferred
Security. The Underwriters may allow, and such dealers may reallow, a concession
not in excess of $[ ] per Series A Preferred Security to certain brokers and
dealers. After the Series A Preferred Securities are released for sale to the
public, the public offering price and other selling terms may from time to time
be varied by the Representatives.
In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will be loaned to Protective Life, pursuant to the Underwriting
Agreement Protective Life has agreed to pay to the Underwriters, as compensation
for their services, an amount equal to $ per Series A Preferred
Security, except that such compensation will be $ per Series A
Preferred Security sold to certain institutions.
Certain of the Underwriters are customers of, or engage in transactions
with, and from time to time have performed services for, Protective Life and its
subsidiaries and associated companies in the ordinary course of business.
Prior to this offering, there has been no market for the Series A Preferred
Securities. The Series A Preferred Securities have been approved for listing on
the NYSE, subject to official notice of issuance. In order to meet one of the
requirements for listing the Series A Preferred Securities on the NYSE, the
Underwriters have undertaken to sell Series A Preferred Securities to a minimum
of 400 beneficial holders.
PLC Capital and Protective Life have agreed to indemnify the Underwriters
against certain liabilities, including liabilities under the Securities Act.
S-30
<PAGE>
LEGAL OPINIONS
Tax matters described under "Certain Federal Income Tax Considerations" in
this Prospectus Supplement have been passed upon by Debevoise & Plimpton. In
rendering its opinion, Debevoise & Plimpton has relied upon an opinion of
Richards, Layton & Finger, P.A. as to certain matters of Delaware law.
S-31
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 25, 1994
PROSPECTUS
U.S. $175,000,000
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
PREFERRED STOCK
PLC CAPITAL L.L.C.
CUMULATIVE MONTHLY INCOME PREFERRED SECURITIES ("MIPS"*)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
PROTECTIVE LIFE CORPORATION
---------------
Protective Life Corporation, a Delaware corporation ("Protective Life"), may
from time to time offer (a) its debt securities, consisting of debentures, notes
and/or other evidences of indebtedness representing unsecured obligations of
Protective Life (the "Debt Securities"), and (b) shares of preferred stock, par
value $1.00 per share ("Preferred Stock"), in each case in one or more series
and in amounts, at prices and on terms to be determined at the time of offering.
PLC Capital L.L.C., a limited liability company formed under the laws of the
State of Delaware ("PLC Capital"), may from time to time offer, in one or more
series, its Cumulative Monthly Income Preferred Securities (the "Preferred
Securities") representing preferred limited liability company interests in PLC
Capital. PLC Capital was formed by Protective Life solely to issue Preferred
Securities and common limited liability company interests ("Common Securities")
and loan the proceeds thereof to Protective Life. Accordingly, the proceeds of
an offering of Preferred Securities, together with all capital contributions
made in respect of Common Securities, will be loaned to Protective Life in
exchange for subordinated Debt Securities of Protective Life ("Subordinated
Debentures") having the terms described herein. Interest and principal payments
on the Subordinated Debentures are intended to fund the payment of periodic
distributions ("dividends") and redemption and liquidation distributions on the
Preferred Securities and the Common Securities. The payment of dividends (but
only if and to the extent declared out of moneys held by PLC Capital and legally
available therefor), and payments on liquidation (but only to the extent of the
remaining assets of PLC Capital) or redemption at the option of PLC Capital with
respect to the Preferred Securities will be guaranteed by a subordinated
guarantee (the "Guarantee") of Protective Life to the extent set forth herein.
See "PLC Capital L.L.C." and "Description of Certain Contractual Back-Up
Obligations of Protective Life" for a description of the various contractual
backup obligations of Protective Life.
Specific terms of the particular Debt Securities, Preferred Stock and
Preferred Securities in respect of which this Prospectus is being delivered (the
"Offered Securities") will be set forth in an accompanying Prospectus Supplement
(the "Prospectus Supplement"), which will describe, without limitation and where
applicable, the following: (x) in the case of Debt Securities, the specific
designation, aggregate principal amount, denomination, maturity, premium, if
any, interest rate (which may be fixed or variable) or method of calculating
interest, if any, place or places where principal, premium, if any, and
interest, if any, will be payable, currency in which principal, premium, if any,
and interest, if any, will be payable, any terms of redemption, any sinking fund
provisions, any listing on a securities exchange and other special terms, and
(y) in the case of Preferred Stock and Preferred Securities, the specific
designation, stated value and liquidation preference per share or security and
number of shares or securities offered, dividend rate (which may be fixed or
variable) or method of calculating dividends, place or places where dividends
will be payable, any terms of redemption, any listing on a securities exchange
and other special terms.
The offering price to the public of the Offered Securities will be limited
to U.S. $175,000,000 in the aggregate (or its equivalent (based on the
applicable exchange rate at the time of issue), if Offered Securities are
offered for consideration denominated in one or more foreign currencies or
currency units as shall be designated by Protective Life). The Debt Securities
may be denominated in United States dollars or, at the option of Protective Life
if so specified in the applicable Prospectus Supplement, in one or more foreign
currencies or currency units. The Debt Securities may be issued in registered
form or bearer form, or both. If so specified in the applicable Prospectus
Supplement, Debt Securities of a series may be issued in whole or in part in the
form of one or more temporary or permanent global securities.
The Offered Securities may be sold to or through underwriters, through
dealers or agents or directly to purchasers. See "Plan of Distribution". The
names of any underwriters, dealers or agents involved in the sale of the Offered
Securities in respect of which this Prospectus is being delivered and any
applicable fee, commission or discount arrangements with them will be set forth
in a Prospectus Supplement.
This Prospectus may not be used to consummate sales of offered securities
unless accompanied by a Prospectus Supplement.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- - - --------------------------
*An application has been filed by Goldman, Sachs & Co. with the United States
Patent and Trademark Office for the registration of the MIPS servicemark.
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
Protective Life is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, 13th Floor, Suite 1300, New York,
New York 10048 and Suite 1400, Northwestern Atrium Center, 14th Floor, 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates by writing to the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549.
In addition, such reports, proxy statements and other information concerning
Protective Life can be inspected at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits, the "Registration Statement") filed
by Protective Life and PLC Capital with the Commission under the Securities Act
of 1933, as amended (the "Securities Act"). This Prospectus does not contain all
the information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. For further information with respect to Protective Life, PLC Capital
and the Offered Securities, reference is made to the Registration Statement. The
Registration Statement may be inspected by anyone without charge at the
principal office of the Commission in Washington, D.C. and copies of all or part
of it may be obtained from the Commission upon payment of the prescribed fees.
No separate financial statements of PLC Capital have been included herein.
Protective Life and PLC Capital do not consider that such financial statements
would be material to holders of the Preferred Securities because PLC Capital is
a newly organized special purpose entity, has no operating history and no
independent operations and is not engaged in, and does not propose to engage in,
any activity other than the issuance of the Preferred Securities and the Common
Securities and the lending of the net proceeds thereof to Protective Life
pursuant to loans to be evidenced by Subordinated Debentures. See "PLC Capital
L.L.C". PLC Capital is a limited liability company formed under the laws of the
State of Delaware and will be managed by Protective Life, in its capacity as a
holder of Common Securities.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Protective Life's Quarterly Report on Form 10-Q for the three month period
ended March 31, 1994, its Annual Report on Form 10-K for the year ended December
31, 1993, its Form 10-K/A (amending its Annual Report on Form 10-K for the year
ended December 31, 1993) dated May 19, 1994 and its Current Report on Form 8-K
dated August 4, 1993, as filed with the Commission pursuant to the Exchange Act
(file no. 0-9924), are incorporated herein by reference.
Each document or report subsequently filed by Protective Life pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and
prior to the termination of the offering described herein shall be deemed to be
incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of filing of such document. Any statement contained
herein, or in a document all or a portion of which is incorporated or deemed to
be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of the Registration Statement and this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of the Registration Statement or this Prospectus.
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Protective Life will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference, other than
certain exhibits to such documents. Requests should be directed to: Protective
Life Corporation, P.O. Box 2606, Birmingham, Alabama 35202 (telephone: (205)
879-9230).
PROTECTIVE LIFE CORPORATION
Protective Life, a Delaware corporation incorporated in 1981, is an
insurance holding company that owns a group of life insurance companies that
provide financial services through the production, distribution and
administration of insurance and investment products. Protective Life Insurance
Company ("Protective Life Insurance"), founded in 1907, is Protective Life's
principal operating subsidiary.
During 1993, Protective Life reported revenues of $760 million and net
income of $57 million. During the three months ended March 31, 1994, Protective
Life reported revenues of $196 million and net income of $17 million. At March
31, 1994, Protective Life had total assets of $5.4 billion, stockholders' equity
of $319 million and life insurance inforce of $43.3 billion. Protective Life's
insurance subsidiaries generated approximately 94% of its revenues in 1993 and
98% of its revenues for the three months ended March 31, 1994. Protective Life
Insurance is currently rated A+ (Superior) by A.M. Best Company, Inc. ("A.M.
Best"). A.M. Best, an independent insurance industry rating organization,
assigns fifteen letter ratings to insurance companies, ranging from "A++
(Superior)" to "C- (Fair)." A.M. Best's ratings are based on factors of
relevance primarily to policyholders and are not directed to the protection of
investors, such as holders of the Offered Securities. Such ratings do not apply
to the Offered Securities.
Protective Life's principal executive offices are located at 2801 Highway
280 South, Birmingham, Alabama 35223, and its telephone number is (205)
879-9230.
Protective Life's ability to pay principal and interest on any Debt
Securities, Preferred Stock or Subordinated Debentures is affected by the
ability of its insurance company subsidiaries, Protective Life's principal
sources of cash flow, to declare and distribute dividends and to make payments
on surplus notes (i.e., deeply subordinated intercompany notes owed by insurance
company subsidiaries to Protective Life that are treated as equity capital for
statutory accounting purposes), both of which may be limited by regulatory
restrictions and, in the case of payments on surplus notes, by certain financial
covenants. Protective Life's cash flow is also dependent on revenues from
investment, data processing, legal and management services rendered to its
subsidiaries. Insurance company subsidiaries of Protective Life are subject to
various state statutory and regulatory restrictions, applicable to insurance
companies generally, that limit the amount of cash dividends, loans and advances
that those subsidiaries may pay to Protective Life. Under Tennessee insurance
laws, Protective Life Insurance may generally only pay dividends to Protective
Life out of its unassigned surplus as reflected in its statutory financial
statements filed in that State. In addition, the Tennessee Commissioner of
Insurance must approve (or not disapprove within 30 days of notice) payment of
an "extraordinary" dividend from Protective Life Insurance, which generally
under Tennessee insurance laws is a dividend that exceeds, together with all
dividends paid by Protective Life Insurance within the previous 12 months, the
greater of (i) 10% of Protective Life Insurance's surplus as regards
policyholders at the preceding December 31 or (ii) the net gain from operations
of Protective Life Insurance for the 12 months ended on such December 31. The
maximum amount that would qualify as ordinary dividends to Protective Life by
its insurance subsidiaries in 1994 is estimated to be $57 million. No assurance
can be given that more stringent restrictions will not be adopted from time to
time by states in which Protective Life's insurance subsidiaries are domiciled,
which restrictions could have the effect, under certain circumstances, of
significantly reducing dividends or other amounts payable to Protective Life by
such subsidiaries without affirmative prior approval by state insurance
regulatory authorities.
In the event of the insolvency, liquidation, reorganization, dissolution or
other winding-up of a subsidiary of Protective Life, all creditors of such
subsidiary, including holders of life and health insurance policies, would be
entitled to payment in full out of the assets of such subsidiary before
Protective Life, as shareholder or holder of surplus notes, would be entitled to
any payment, and thus such
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creditors would have to be paid in full before the creditors of Protective Life
(including holders of Debt Securities or Subordinated Debentures) would be
entitled to receive any payment from the assets of such subsidiary.
PLC CAPITAL L.L.C.
PLC Capital is a limited liability company formed under the laws of the
State of Delaware. PLC Capital's offices are located at 2801 Highway 280 South,
Birmingham, Alabama 35223 (Telephone: (205) 879-9230). Protective Life owns,
directly and indirectly, all of the Common Securities of PLC Capital, which
Common Securities are nontransferable. PLC Capital was formed by Protective Life
and its wholly-owned subsidiary solely to issue Common Securities and Preferred
Securities (collectively, the "Membership Securities") and to lend the proceeds
thereof to Protective Life in exchange for Subordinated Debentures. Interest and
principal payments on Subordinated Debentures are intended to fund the payment
of dividends and redemption and liquidation distributions on the Membership
Securities. Accordingly, PLC Capital's sole source of cash flow is Protective
Life, and PLC Capital's ability to make dividend and other payments in respect
of Preferred Securities will be dependent on interest and principal payments by
Protective Life on the Subordinated Debentures. See "Protective Life
Corporation".
PLC Capital will be managed by Protective Life, in its capacity as a holder
of Common Securities (in such capacity, the "Managing Member"). Holders of
Membership Securities in PLC Capital are referred to herein as "Members." PLC
Capital's Amended and Restated Limited Liability Company Agreement (the "L.L.C.
Agreement") provides that Protective Life, in its capacity as a holder of Common
Securities, shall be liable for all obligations and liabilities of PLC Capital
(including tax obligations, but excluding obligations in respect of Preferred
Securities). Under Delaware law, members who hold Series A Preferred Securities
(other than Protective Life) will not be liable for the debts, obligations and
liabilities of PLC Capital, whether arising in contract, tort or otherwise,
solely by reason of being a member of PLC Capital (subject to any obligation
such members may have to repay any funds that may have been wrongfully
distributed to them).
USE OF PROCEEDS
The proceeds from the sale of any Preferred Securities (together with any
capital contributed in respect of Common Securities) will be loaned to
Protective Life in exchange for Subordinated Debentures. Protective Life will
use borrowings from PLC Capital, and the net proceeds from any sale of Debt
Securities or Preferred Stock, for general corporate purposes, including, but
not limited to, repayments of indebtedness of Protective Life or its
subsidiaries. A more detailed description of the use of proceeds of any specific
offering of Offered Securities shall be set forth in the Prospectus Supplement
pertaining to such offering.
RATIOS OF CONSOLIDATED EARNINGS TO FIXED CHARGES
The following table sets forth Protective Life's ratios of earnings to fixed
charges:
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
---------------------------- ----------
1989 1990 1991 1992 1993 1993 1994
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Consolidated Earnings to Fixed Charges (1)................... 25.3 8.2 9.7 13.5 14.4 13.9 13.4
Ratio of Consolidated Earnings to Interest on Debt and Interest
Credited on Investment Products (2).................................. 3.1 1.6 1.4 1.3 1.4 1.3 1.4
<FN>
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(1) The ratio of consolidated earnings to fixed charges is calculated by
dividing the sum of income before income tax (excluding pretax minority
interest) and interest expense on debt, by interest expense on debt.
(2) The ratio of consolidated earnings to interest on debt and interest
credited on investment products is calculated by dividing the sum of
income before income tax (excluding pre-tax minority interest), interest
expense on debt and interest credited on investment products, by the sum
of interest expense on debt and interest credited on investment products.
Investment products include products such as guaranteed investment
contracts and annuities.
</TABLE>
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DESCRIPTION OF DEBT SECURITIES OF PROTECTIVE LIFE
The Debt Securities offered hereby are to be issued in one or more series
under either (i) the Senior Indenture, dated as of , 1994 (the "Senior
Indenture"), between Protective Life and The Bank of New York, as Trustee (the
"Trustee") or (ii) the Subordinated Indenture, dated as of , 1994 (the
"Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between Protective Life and AmSouth Bank NA, as trustee (also,
the "Trustee"), the forms of which have been filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
The statements herein relating to the Debt Securities and the following
summaries of certain provisions of the Indentures do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indentures (as they may be amended or supplemented from time
to time), including the definitions therein of certain terms capitalized in this
Prospectus. Whenever particular Sections or defined terms of the Indentures (as
they may be amended or supplemented from time to time) are referred to herein or
in a Prospectus Supplement, such Sections or defined terms are incorporated
herein or therein by reference.
GENERAL
The Debt Securities will be unsecured obligations of Protective Life. The
Debt Securities issued under the Senior Indenture will be unsecured and will
rank PARI PASSU with all other unsecured and unsubordinated obligations of
Protective Life. The Debt Securities issued under the Subordinated Indenture
will be subordinate and junior in right of payment to the extent and in the
manner set forth in the Subordinated Indenture to all Senior Indebtedness of
Protective Life. See "-- Subordination under the Subordinated Indenture." The
Indentures do not limit the aggregate amount of Debt Securities which may be
issued thereunder, nor do they limit the incurrence or issuance of other secured
or unsecured debt of Protective Life.
Reference is made to the applicable Prospectus Supplement which will
accompany this Prospectus for a description of the specific series of Debt
Securities being offered thereby, including: (1) the title of such Debt
Securities; (2) any limit upon the aggregate principal amount of such Debt
Securities; (3) the date or dates on which the principal of and premium, if any,
on such Debt Securities will mature or the method of determining such date or
dates; (4) the rate or rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, or the method of calculating such rate or
rates; (5) the date or dates from which interest, if any, will accrue or the
method by which such date or dates will be determined; (6) the date or dates on
which interest, if any, will be payable and the record date or dates therefor;
(7) the place or places where principal of, premium, if any, and interest, if
any, on such Debt Securities will be payable; (8) the period or periods within
which, the price or prices at which, the currency or currencies (including
currency unit or units) in which, and the terms and conditions upon which, such
Debt Securities may be redeemed, in whole or in part, at the option of
Protective Life; (9) the obligation, if any, of Protective Life to redeem or
purchase such Debt Securities pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event and the period or periods
within which, the price or prices at which and the other terms and conditions
upon which, such Debt Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligations; (10) the denominations in which such Debt
Securities are authorized to be issued; (11) the currency or currency unit for
which Debt Securities may be purchased or in which Debt Securities may be
denominated and/ or the currency or currencies (including currency unit or
units) in which principal of, premium, if any, and interest, if any, on such
Debt Securities will be payable and whether Protective Life or the holders of
any such Debt Securities may elect to receive payments in respect of such Debt
Securities in a currency or currency unit other than that in which such Debt
Securities are stated to be payable; (12) if other than the principal amount
thereof, the portion of the principal amount of such Debt Securities which will
be payable upon declaration of the acceleration of the maturity thereof or the
method by which such portion shall be determined; (13) the person to whom any
interest on any such Debt Security shall be payable if other than the person in
whose name such Debt Security is registered on the applicable record date; (14)
any addition to, or modification or deletion of, any Event of Default or any
covenant of Protective Life
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specified in the Indenture with respect to such Debt Securities; (15) the
application, if any, of such means of defeasance or covenant defeasance as may
be specified for such Debt Securities; (16) whether such Debt Securities are to
be issued in whole or in part in the form of one or more temporary or permanent
global securities and, if so, the identity of the depository for such global
security or securities; and (17) any other special terms pertaining to such Debt
Securities. (Section 3.1 of each Indenture.) Unless otherwise specified in the
applicable Prospectus Supplement, the Debt Securities will not be listed on any
securities exchange.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities will be issued in fully-registered form without coupons. Where Debt
Securities of any series are issued in bearer form, the special restrictions and
considerations, including special offering restrictions and special federal
income tax considerations, applicable to any such Debt Securities and to payment
on and transfer and exchange of such Debt Securities will be described in the
applicable Prospectus Supplement. Bearer Debt Securities will be transferable by
delivery. (Section 3.5 of each Indenture.)
Debt Securities may be sold at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate which at the time of
issuance is below market rates. Certain federal income tax consequences and
special considerations applicable to any such Debt Securities will be described
in the applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is payable in one or
more foreign currencies or currency units or if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities is
payable in one or more foreign currencies or currency units, the restrictions,
elections, certain federal income tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such foreign
currency or currency units will be set forth in the applicable Prospectus
Supplement.
The general provisions of the Indentures do not afford holders of the Debt
Securities protection in the event of a highly leveraged or other transaction
involving Protective Life that may adversely affect holders of the Debt
Securities.
PAYMENT, REGISTRATION, TRANSFER AND EXCHANGE
Unless otherwise provided in the applicable Prospectus Supplement, payments
in respect of the Debt Securities will be made in the designated currency at the
office or agency of Protective Life maintained for that purpose as Protective
Life may designate from time to time, except that, at the option of Protective
Life, interest payments, if any, on Debt Securities in registered form may be
made (i) by checks mailed to the holders of Debt Securities entitled thereto at
their registered addresses or (ii) by wire transfer to an account maintained by
the person entitled thereto as specified in the Register. (Sections 3.7(a) and
9.2 of each Indenture.) Unless otherwise indicated in an applicable Prospectus
Supplement, payment of any installment of interest on Debt Securities in
registered form will be made to the person in whose name such Debt Security is
registered at the close of business on the regular record date for such
interest. (Section 3.7(a) of each Indenture.)
Payment in respect of Debt Securities in bearer form will be made in the
currency and in the manner designated in the Prospectus Supplement, subject to
any applicable laws and regulations, at such paying agencies outside the United
States as Protective Life may appoint from time to time. The paying agents
outside the United States initially appointed by Protective Life for a series of
Debt Securities will be named in the Prospectus Supplement. Protective Life may
at any time designate additional paying agents or rescind the designation of any
paying agents, except that, if Debt Securities of a series are issuable as
Registered Securities, Protective Life will be required to maintain at least one
paying agent in each Place of Payment for such series and, if Debt Securities of
a series are issuable as Bearer Securities, Protective Life will be required to
maintain a paying agent in a Place of Payment outside the United States where
Debt Securities of such series and any coupons appertaining thereto may be
presented and surrendered for payment. (Section 9.2 of each Indenture.)
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Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities in registered form will be transferable or exchangeable at the agency
of Protective Life maintained for such purpose as designated by Protective Life
from time to time. (Sections 3.5 and 9.2 of each Indenture.) Debt Securities may
be transferred or exchanged without service charge, other than any tax or other
governmental charge imposed in connection therewith. (Section 3.5 of each
Indenture.)
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more fully registered global securities (a "Registered Global
Security") that will be deposited with a depository (the "Depository") or with a
nominee for the Depository identified in the applicable Prospectus Supplement.
In such a case, one or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be represented
by such Registered Global Security or Securities. (Section 3.3 of each
Indenture.) Unless and until it is exchanged in whole or in part for Debt
Securities in definitive certificated form, a Registered Global Security may not
be transferred or exchanged except as a whole by the Depository for such
Registered Global Security to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or by
such Depository or any such nominee to a successor Depository for such series or
a nominee of such successor Depository and except in the circumstances described
in the applicable Prospectus Supplement. (Section 3.5 of each Indenture.)
The specific terms of the depository arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global Security
will be described in the applicable Prospectus Supplement. Protective Life
expects that the following provisions will apply to depository arrangements.
Upon the issuance of any Registered Global Security, and the deposit of such
Registered Global Security with or on behalf of the Depository for such
Registered Global Security, the Depository will credit, on its book-entry
registration and transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the accounts of
institutions ("participants") that have accounts with the Depository or its
nominee. The accounts to be credited will be designated by the underwriters or
agents engaging in the distribution of such Debt Securities or by Protective
Life, if such Debt Securities are offered and sold directly by Protective Life.
Ownership of beneficial interests in a Registered Global Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in such Registered Global
Security will be shown on, and the transfer of such beneficial interests will be
effected only through, records maintained by the Depository for such Registered
Global Security or by its nominee. Ownership of beneficial interests in such
Registered Global Security by persons that hold through participants will be
shown on, and the transfer of such beneficial interests within such participants
will be effected only through, records maintained by such participants. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Registered Global Securities.
So long as the Depository for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depository or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under each Indenture. (Section 3.8 of each Indenture.) Unless otherwise
specified in the applicable Prospectus Supplement and except as specified below,
owners of beneficial interests in such Registered Global Security will not be
entitled to have Debt Securities of the series represented by such Registered
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities of such series in certificated form
and will not be considered the holders thereof for any purposes under the
relevant Indenture. (Section 3.5 of each Indenture.) Accordingly, each person
owning a beneficial interest in such Registered Global Security must rely on
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the procedures of the Depository and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a holder under the relevant Indenture. The Depository
may grant proxies and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a holder is entitled to give or take under the relevant Indenture.
Protective Life understands that, under existing industry practices, if
Protective Life requests any action of holders or any owner of a beneficial
interest in such Registered Global Security desires to give any notice or take
any action a holder is entitled to give or take under the relevant Indenture,
the Depository would authorize the participants to give such notice or take such
action, and participants would authorize beneficial owners owning through such
participants to give such notice or take such action or would otherwise act upon
the instructions of beneficial owners owning through them.
Unless otherwise specified in the applicable Prospectus Supplement, payments
with respect to principal, premium, if any, and interest, if any, on Debt
Securities represented by a Registered Global Security registered in the name of
a Depository or its nominee will be made to such Depository or its nominee, as
the case may be, as the registered owner of such Registered Global Security.
Protective Life expects that the Depository for any Debt Securities
represented by a Registered Global Security, upon receipt of any payment of
principal, premium or interest, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Registered Global Security as shown on the
records of such Depository. Protective Life also expects that payments by
participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers registered in "street names", and will be the
responsibility of such participants. None of Protective Life, the respective
Trustees or any agent of Protective Life or the respective Trustees shall have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial interests of a Registered Global
Security, or for maintaining, supervising or reviewing any records relating to
such beneficial interests. (Section 3.8 of each Indenture.)
Unless otherwise specified in the applicable Prospectus Supplement, if the
Depository for any Debt Securities represented by a Registered Global Security
notifies Protective Life that it is unwilling or unable to continue as
Depository and a successor Depository is not appointed by Protective Life within
90 days, Protective Life will issue such Debt Securities in definitive
certificated form in exchange for such Registered Global Security. In addition,
Protective Life may at any time and in its sole discretion determine not to have
any of the Debt Securities of a series represented by one or more Registered
Global Securities and, in such event, will issue Debt Securities of such series
in definitive certificated form in exchange for all of the Registered Global
Security or Securities representing such Debt Securities. (Section 3.5 of each
Indenture.)
The Debt Securities of a series may also be issued in whole or in part in
the form of one or more bearer global securities (a "Bearer Global Security")
that will be deposited with a depository, or with a nominee for such depository,
identified in the applicable Prospectus Supplement. Any such Bearer Global
Securities may be issued in temporary or permanent form. (Section 3.4 of each
Indenture.) The specific terms and procedures, including the specific terms of
the depository arrangement, with respect to any portion of a series of Debt
Securities to be represented by one or more Bearer Global Securities will be
described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER OR SALE BY PROTECTIVE LIFE
Protective Life shall not consolidate with or merge into any other
corporation or sell its assets substantially as an entirety, unless (i) the
corporation formed by such consolidation or into which Protective Life is merged
or the corporation which acquires its assets is organized in the United States
and expressly assumes all of the obligations of Protective Life under each
Indenture, (ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have happened and be continuing and (iii) if, as a
result of such transaction, properties or assets of Protective Life would
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become subject to a mortgage, pledge, lien, security interest or other
encumbrance not permitted by the Debt Securities of any series, Protective Life
or its successor shall take steps necessary to secure such Debt Securities
equally and ratably with all indebtedness secured thereby. Upon any such
consolidation, merger or sale, the successor corporation formed by such
consolidation, or into which Protective Life is merged or to which such sale is
made, shall succeed to, and be substituted for Protective Life under each
Indenture. (Section 7.1 of each Indenture.)
EVENTS OF DEFAULT, NOTICE AND CERTAIN RIGHTS ON DEFAULT
Each Indenture provides that, if an Event of Default specified therein
occurs with respect to the Debt Securities of any series and is continuing, the
Trustee for such series or the holders of 25% in aggregate principal amount of
all of the outstanding Debt Securities of that series, by written notice to
Protective Life (and to the Trustee for such series, if notice is given by such
holders of Debt Securities), may declare the principal of (or, if the Debt
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount specified in the Prospectus
Supplement) and accrued interest on all the Debt Securities of that series to be
due and payable (provided, with respect to any Debt Securities (including
Subordinated Debentures) issued under the Subordinated Indenture, that the
payment of principal and interest on such Debt Securities shall remain
subordinated to the extent provided in Article 12 of the Subordinated
Indenture). (Section 5.2 of each Indenture.)
Events of Default with respect to Debt Securities of any series are defined
in each Indenture as being: (a) default for 30 days in payment of any interest
on any Debt Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to Debt Securities of such series as
specified in the applicable Prospectus Supplement when due; (b) default in
payment of principal, or premium, if any, at maturity or on redemption or
otherwise, or in the making of a mandatory sinking fund payment of any Debt
Securities of that series when due; (c) default for 60 days after notice to
Protective Life by the Trustee for such series, or by the holders of 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding, in the performance of any other agreement in the Debt Securities of
that series, in the Indenture or in any supplemental indenture or board
resolution referred to therein under which the Debt Securities of that series
may have been issued; (d) default in payment of principal relating to
indebtedness of Protective Life and its consolidated subsidiaries for borrowed
money having an aggregate principal amount exceeding $25 million, or other
default resulting in acceleration of indebtedness of Protective Life and its
consolidated subsidiaries for borrowed money where the aggregate principal
amount so accelerated exceeds $25 million and such acceleration is not rescinded
or annulled within 30 days after the written notice thereof to Protective Life
by the Trustee or to Protective Life and the Trustee by the holders of 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding, PROVIDED that such Event of Default will be remedied, cured or
waived if the default that resulted in the acceleration of such indebtedness is
remedied, cured or waived; and (e) certain events of bankruptcy, insolvency or
reorganization of Protective Life or Protective Life Insurance. (Section 5.1 of
each Indenture.) Events of Default with respect to a specified series of Debt
Securities may be added to the Indenture and, if so added, will be described in
the applicable Prospectus Supplement. (Sections 3.1 and 5.1(7) of each
Indenture.)
Each Indenture provides that the Trustee will, within 90 days after the
occurrence of a Default with respect to the Debt Securities of any series, give
to the holders of the Debt Securities of that series notice of all Defaults
known to it unless such Default shall have been cured or waived; PROVIDED that
except in the case of a Default in payment on the Debt Securities of that
series, the Trustee may withhold the notice if and so long as the board of
directors of Protective Life, the executive committee thereof or a committee of
its Responsible Officers in good faith determines that withholding such notice
is in the interests of the holders of the Debt Securities of that series.
(Section 6.6 of each Indenture.) "Default" means any event which is, or after
notice or passage of time or both, would be, an Event of Default. (Section 1.1
of each Indenture.)
Each Indenture provides that the holders of a majority in aggregate
principal amount of the Debt Securities of each series affected (with each such
series voting as a class) may, subject to certain limited
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conditions, direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee for such series, or exercising any trust or
power conferred on such Trustee. (Section 5.8 of each Indenture.)
Each Indenture includes a covenant that Protective Life will file annually
with the Trustee a certificate as to Protective Life's compliance with all
conditions and covenants of such Indenture. (Section 9.5 of each Indenture.)
The holders of a majority in aggregate principal amount of any series of
Debt Securities by 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 Life and the
Trustee to enter into one or more supplemental indentures without the consent of
the holders of any of the Debt Securities in order (i) to evidence the
succession of another corporation to Protective Life and the assumption of the
covenants of Protective Life by a successor to Protective Life; (ii) to add to
the covenants of Protective Life or surrender any right or power of Protective
Life; (iii) to add additional Events of Default with respect to any series of
Debt Securities; (iv) to add or change any provisions to such extent as
necessary to permit or facilitate the issuance of Debt Securities in bearer
form; (v) to change or eliminate any provision affecting only Debt Securities
not yet issued; (vi) to secure the Debt Securities; (vii) to establish the form
or terms of Debt Securities; (viii) to evidence and provide for successor
Trustees; (ix) if allowed without penalty under applicable laws and regulations,
to permit payment in respect of Debt Securities in bearer form in the United
States; (x) to correct any defect or supplement any inconsistent provisions or
to make any other provisions with respect to matters or questions arising under
such Indenture or to cure any ambiguity or correct any mistake, PROVIDED that
any such action does not adversely affect the interests of any holder of Debt
Securities of any series; or (xi) in the case of the Subordinated Indenture, to
modify the subordination provisions thereof in a manner not adverse to the
holders of Subordinated Debentures of any series (and in the case of
Subordinated Debentures issued in return for the proceeds of Preferred
Securities of any series, not adverse to the holders of such Preferred
Securities). (Section 8.1 of each Indenture.)
Each Indenture also contains provisions permitting Protective Life and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities affected by such supplemental
indenture (with the Debt Securities of each series voting as a class), to
execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of such Indenture or any supplemental
indenture or modifying the rights of the holders of Debt Securities of such
series, except that, without the consent of the holder of each Debt Security so
affected, no such supplemental indenture may: (i) change the time for payment of
principal or premium, if any, or interest on any Debt Security; (ii) reduce the
principal of, or any installment of principal of, or premium, if any, or
interest on any Debt Security, or change the manner in which the amount of any
of the foregoing is determined; (iii) reduce the amount of premium, if any,
payable upon the redemption of any Debt Security; (iv) reduce the amount of
principal payable upon acceleration of the maturity of any Original Issue
Discount or Indexed Security; (v) change the currency or currency unit in which
any Debt Security or any premium or interest thereon is payable; (vi) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Debt Security; (vii) reduce the percentage in principal amount of the
outstanding Debt Securities affected thereby the consent of whose holders is
required for modification or amendment of such Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults; (viii) change the obligation of Protective Life to maintain an office
or agency in the places and for the purposes specified in such Indenture; (ix)
in the case of the Subordinated Indenture, modify the subordination provisions
thereof in a manner adverse to the holders of Subordinated Debentures of any
series (and in the case of Subordinated Debentures issued in return for
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the proceeds of Preferred Securities of any series, adverse to the holders of
such Preferred Securities); or (x) modify the provisions relating to waiver of
certain defaults or any of the foregoing provisions. (Section 8.2 of each
Indenture.)
SUBORDINATION UNDER THE SUBORDINATED INDENTURE
In the Subordinated Indenture, Protective Life will covenant and agree that
any Debt Securities (including Subordinated Debentures) issued thereunder
("Subordinated Debt Securities") are subordinate and junior in right of payment
to all Senior Indebtedness to the extent provided in the Subordinated Indenture.
The Subordinated Indenture defines the term "Senior Indebtedness" as the
principal, premium, if any, and interest on (i) all indebtedness of Protective
Life, whether outstanding on the date of the issuance of Subordinated Debt
Securities or thereafter created, incurred or assumed, which is for money
borrowed, or evidenced by a note or similar instrument given in connection with
the acquisition of any business, properties or assets, including securities,
(ii) any indebtedness of others of the kinds described in the preceding clause
(i) for the payment of which Protective Life is responsible or liable as
guarantor or otherwise and (iii) amendments, renewals, extensions and refundings
of any such indebtedness, unless in any instrument or instruments evidencing or
securing such indebtedness or pursuant to which the same is outstanding, or in
any such amendment, renewal, extension or refunding, it is expressly provided
that such indebtedness is not superior in right of payment to Subordinated Debt
Securities. The Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
If (i) Protective Life defaults in the payment of any principal, or premium,
if any, or interest on any Senior Indebtedness when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or declaration or
otherwise or (ii) an event of default occurs with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
and written notice of such event of default (requesting that payments on
Subordinated Debt Securities cease) is given to Protective Life by the holders
of Senior Indebtedness, then unless and until such default in payment or event
of default shall have been cured or waived or shall have ceased to exist, no
direct or indirect payment (in cash, property or securities, by set-off or
otherwise) shall be made or agreed to be made on account of the Subordinated
Debt Securities or interest thereon or in respect of any repayment, redemption,
retirement, purchase or other acquisition of Subordinated Debt Securities.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to Protective Life, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding-up of Protective Life, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by Protective Life for the benefit of creditors or (iv) any
other marshalling of the assets of Protective Life, all Senior Indebtedness
(including, without limitation, interest accruing after the commencement of any
such proceeding, assignment or marshalling of assets) shall first be paid in
full before any payment or distribution, whether in cash, securities or other
property, shall be made by Protective Life on account of Subordinated Debt
Securities. In any such event, any payment or distribution, whether in cash,
securities or other property (other than securities of Protective Life or any
other corporation provided for by a plan of reorganization or a readjustment,
the payment of which is subordinate, at least to the extent provided in the
subordination provisions of the Subordinated Indenture with respect to the
indebtedness evidenced by Subordinated Debt Securities, to the payment of all
Senior Indebtedness at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for the subordination provisions) be payable or deliverable
in respect of Subordinated Debt Securities (including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other indebtedness of Protective Life being subordinated to the payment of
Subordinated Debt Securities) shall be paid or delivered directly to the holders
of Senior Indebtedness, or to their representative or trustee, in accordance
with the priorities then existing among such holders until all Senior
Indebtedness shall have been paid in full. No present
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or future holder of any Senior Indebtedness shall be prejudiced in the right to
enforce subordination of the indebtedness evidenced by Subordinated Debt
Securities by any act or failure to act on the part of Protective Life.
Senior Indebtedness shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the holders of Subordinated Debt Securities
shall be subrogated to all the rights of any holders of Senior Indebtedness to
receive any further payments or distributions applicable to the Senior
Indebtedness until all Subordinated Debt Securities shall have been paid in
full, and such payments or distributions received by any holder of Subordinated
Debt Securities, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between Protective Life and its creditors other than the
holders of Senior Indebtedness, on the one hand, and the holders of Subordinated
Debt Securities, on the other, be deemed to be a payment by Protective Life on
account of Senior Indebtedness, and not on account of Subordinated Debt
Securities.
The Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Subordinated Debt
Securities, may be changed prior to such issuance. Any such change would be
described in the Prospectus Supplement relating to such Subordinated Debt
Securities.
DEFEASANCE AND COVENANT DEFEASANCE
If indicated in the applicable Prospectus Supplement, Protective Life may
elect either (i) to defease and be discharged from any and all obligations with
respect to the Debt Securities of or within any series (except as otherwise
provided in the relevant Indenture) ("defeasance") or (ii) to be released from
its obligations with respect to certain covenants applicable to the Debt
Securities of or within any series ("covenant defeasance"), upon the deposit
with the relevant Trustee (or other qualifying trustee), in trust for such
purpose, of money and/or Government Obligations which through the payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient, without reinvestment, to pay the principal of and any premium
or interest on such Debt Securities to Maturity or redemption, as the case may
be, and any mandatory sinking fund or analogous payments thereon. As a condition
to defeasance or covenant defeasance, Protective Life must deliver to the
Trustee an Officer's Certificate and an Opinion of Counsel to the effect that
the Holders of such Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred. Such Opinion of Counsel, in
the case of defeasance under clause (i) above, must refer to and be based upon a
ruling of the Internal Revenue Service or a change in applicable federal income
tax law occurring after the date of the relevant Indenture. Additional
conditions to defeasance include (x) delivery by Protective Life to the Trustee
of an Officer's Certificate to the effect that neither such Debt Securities nor
any other Debt Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such defeasance, (y) no Event of
Default with respect to such Debt Securities or any other Debt Securities
occurring or continuing at the time of such defeasance or, in the case of
certain bankruptcy Events of Default, at any time on or prior to the 90th day
after the date of such defeasance and (z) such defeasance not resulting in the
trust arising from the deposit of any moneys in respect of such defeasance
constituting an "investment company" within the meaning of the Investment
Company Act unless such trust shall be registered under such Act or exempt from
registration thereunder. (Article 4 of each Indenture.) If indicated in the
applicable Prospectus Supplement, in addition to obligations of the United
States or an agency or instrumentality thereof, Government Obligations may
include obligations of the government or an agency or instrumentality of the
government issuing the currency or currency unit in which Debt Securities of
such series are payable. (Sections 1.1 and 3.1 of each Indenture.)
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
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Subordinated Indenture" above, would prevent Protective Life from making
payments of principal of (and premium, if any) and interest on Subordinated Debt
Securities and coupons appertaining thereto at the date of the irrevocable
deposit referred to above. (Section 4.6 of the Subordinated Indenture.)
Protective Life may exercise its defeasance option with respect to such Debt
Securities notwithstanding its prior exercise of its covenant defeasance option.
If Protective Life exercises its defeasance option, payment of such Debt
Securities may not be accelerated because of a Default or an Event of Default.
If Protective Life exercises its covenant defeasance option, payment of such
Debt Securities may not be accelerated by reason of a Default or an Event of
Default with respect to the covenants to which such covenant defeasance is
applicable. However, if such acceleration were to occur by reason of another
Event of Default, the realizable value at the acceleration date of the money and
Government Obligations in the defeasance trust could be less than the principal
and interest then due on such Debt Securities, in that the required deposit in
the defeasance trust is based upon scheduled cash flow rather than market value,
which will vary depending upon interest rates and other factors.
THE TRUSTEES
The Bank of New York is the Trustee under the Senior Indenture. AmSouth Bank
N.A. is the Trustee under the Subordinated Indenture. Protective Life may also
maintain banking and other commercial relationships with each of the Trustees
and their affiliates in the ordinary course of business.
DESCRIPTION OF CAPITAL STOCK OF PROTECTIVE LIFE
AUTHORIZED AND OUTSTANDING CAPITAL STOCK
The authorized capital stock of Protective Life is 84,000,000 shares,
consisting of:
(a) 3,850,000 shares of Preferred Stock, par value $1.00 per share, of
which no shares are outstanding;
(b) 150,000 shares of Junior Participating Cumulative Preferred Stock,
par value $1.00 per share (the "Junior Preferred Stock"), of which no shares
are outstanding; and
(c) 80,000,000 shares of Common Stock, par value $.50 per share (the
"Common Stock"), of which 13,702,958 shares were outstanding as of March 31,
1994.
In general, the classes of authorized capital stock are afforded preferences
with respect to dividends and liquidation rights in the order listed above. The
Board of Directors of Protective Life is empowered, without approval of the
stockholders, to cause the Preferred Stock to be issued in one or more series,
with the numbers of shares of each series and the rights, preferences and
limitations of each series to be determined by it. The specific matters that may
be determined by the Board of Directors include the dividend rights, conversion
rights, redemption rights and liquidation preferences, if any, of any wholly
unissued series of Preferred Stock (or of the entire class of Preferred Stock if
none of such shares have been issued), the number of shares constituting any
such series and the terms and conditions of the issue thereof. The descriptions
set forth below do not purport to be complete and are qualified in their
entirety by reference to the Restated Certificate of Incorporation of Protective
Life, as amended (the "Restated Certificate of Incorporation").
No holders of any class of Protective Life's capital stock are entitled to
preemptive rights.
PREFERRED STOCK
The particular terms of any series of Preferred Stock offered hereby
("Offered Preferred Stock") will be set forth in the Prospectus Supplement
relating thereto. The rights, preferences, privileges and restrictions,
including dividend rights, voting rights, terms of redemption and liquidation
preferences, of the Offered Preferred Stock of each series will be fixed or
designated pursuant to a certificate of designation adopted by the Board of
Directors or a duly authorized committee thereof. The description of the terms
of a particular series of Offered Preferred Stock that will be set forth in a
Prospectus Supplement does not purport to be complete and is qualified in its
entirety by reference to the certificate of designation relating to such series.
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JUNIOR PREFERRED STOCK
The Junior Preferred Stock may be issued to holders of the Common Stock
under certain circumstances pursuant to rights granted under Protective Life's
Rights Agreement, dated July 13, 1987, entered into with AmSouth Bank N.A. (the
"Share Purchase Rights Plan"). Protective Life can redeem the rights at $.01 per
right (subject to adjustment to reflect any stock split, stock dividend or
similar transaction) until the earlier of July 28, 1997 (expiration date of
rights) or ten business days following a public announcement that 20% or more of
the Common Stock has been acquired by one or more associated or affiliated
persons. If, after the rights become exercisable, Protective Life becomes
involved in a merger or certain other major corporate transactions, each right
then outstanding (other than those held by the 20% holder) would entitle its
holder to buy from Protective Life or its successor Common Stock of the acquiror
or Protective Life or its successor worth twice the exercise price.
CERTAIN OTHER PROVISIONS OF PROTECTIVE LIFE'S
RESTATED CERTIFICATE OF INCORPORATION
Protective Life's Restated Certificate of Incorporation contains a "fair
price" provision which generally requires that certain "Business Combinations"
with a "Related Person" (generally the beneficial owner of at least 20 percent
of Protective Life's voting stock) be approved by the holders of at least 80
percent of Protective Life's voting stock and the holders of at least 67 percent
of the voting stock held by stockholders other than such Related Person, unless
(a) the transaction is approved by at least a majority of the "Continuing
Directors" of Protective Life, or (b) the Business Combination is either a
"Reorganization" or a Business Combination in which Protective Life is the
surviving corporation and, in either event, the cash or fair market value of the
property, securities or other consideration to be received per share as a result
of the Business Combination by holders of the Common Stock of Protective Life
other than the Related Person is not less than the highest per share price (with
appropriate adjustments for recapitalizations and for stock splits, stock
dividends and like distributions) paid by such Related Person in acquiring any
holdings of Protective Life's Common Stock either in or subsequent to the
transaction or series of transactions by reason of which the Related Person
became a Related Person. Protective Life's Restated Certificate of Incorporation
defines "Business Combination" as (i) any Reorganization of Protective Life or a
subsidiary of Protective Life, (ii) any sale, lease, exchange, transfer or other
disposition, including without limitation a pledge, mortgage or any other
security device, of all or any "Substantial Part" of the assets either of
Protective Life or of a subsidiary of Protective Life, (iii) any sale, lease,
exchange, transfer or other disposition of all or any "Substantial Part" of the
assets of an entity to Protective Life or a subsidiary of Protective Life, (iv)
the issuance of any securities of Protective Life or any subsidiary of
Protective Life except if such issuance were a stock split, stock dividend or
other distribution pro rata to all holders of the same class of voting stock,
(v) any recapitalization or reclassification of Protective Life's securities
(including any reverse stock split) that would have the effect of increasing the
voting power of an entity and (vi) any agreement, contract, plan or other
arrangement providing for any of the transactions described in the definition of
Business Transaction. "Continuing Director" is defined to mean a director who
was a member of the Board of Directors of Protective Life immediately prior to
the time such Related Person became a Related Person. "Substantial Part" is
defined as more than 20 percent of the fair market value of the total assets of
the corporation in question, as determined in good faith by a majority of the
Continuing Directors as of the end of its most recent fiscal year ending prior
to the time the determination is being made. "Reorganization" is defined to mean
a merger, consolidation, plan of exchange, sale of all or substantially all of
the assets (including, as pertains to a subsidiary of Protective Life, bulk
reinsurance or cession of substantially all of its policies and contracts) or
other form of corporate reorganization pursuant to which shares of voting stock,
or other securities of the subject corporation, are to be converted or exchanged
into cash or other property, securities or other consideration.
GENERAL
The foregoing statements are summaries of certain provisions contained in
the Restated Certificate of Incorporation of Protective Life, the form of which
is filed as an exhibit to the Registration Statement of
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which this Prospectus is a part. They do not purport to be complete statements
of all the terms and provisions of the Restated Certificate of Incorporation,
and reference is hereby made to the Restated Certificate of Incorporation for
full and complete statements of such terms and provisions, including the
definitions of certain terms used herein. Whenever reference has been made to
the Restated Certificate of Incorporation, such Restated Certificate of
Incorporation shall be deemed to be incorporated in such statements as a part
thereof and such statements are qualified in their entirety by such reference.
The transfer agent and registrar of the Common Stock is AmSouth Bank NA.
DESCRIPTION OF PREFERRED SECURITIES OF PLC CAPITAL
PLC Capital is authorized to issue from time to time Preferred Securities in
one or more series, with such dividend rights, liquidation preferences,
redemption provisions, voting rights and other rights, powers and duties as
shall be established by the L.L.C. Agreement and written actions (the "Actions")
taken, or to be taken, by the Managing Member establishing such rights, powers
and duties (which Actions, when taken, constitute an amendment and supplement
to, and become a part of, the L.L.C. Agreement). The L.L.C. Agreement has been
filed as an exhibit to the Registration Statement of which this Prospectus forms
a part, and a copy of the Action relating to Preferred Securities of any series
will be filed with the Commission at or prior to the time of the sale of the
Preferred Securities of such series. Preferred Securities will be issued in
registered form only.
The Managing Member is authorized, subject to the provisions of the L.L.C.
Agreement, to establish by Actions for each series of Preferred Securities, and
the applicable Prospectus Supplement shall set forth with respect to such
series: (i) the maximum number of Preferred Securities to constitute such series
and the distinctive designation thereof; (ii) the dividend rate, the conditions
and dates upon which such dividends shall be payable, the preference or relation
which such dividends shall bear to the dividends payable on any other class of
Membership Securities or on any other series of Preferred Securities, and
whether such dividends shall be cumulative or noncumulative; (iii) whether the
Preferred Securities of such series shall be subject to redemption, and, if so,
the times, prices and other terms and conditions thereof; (iv) the rights of the
holders of Preferred Securities of such series upon the dissolution, liquidation
or winding-up of PLC Capital; (v) whether the Preferred Securities of such
series shall be subject to a retirement or sinking fund, and, if so, the extent,
terms and provisions relative to the operation thereof; (vi) whether the
Preferred Securities of any series shall be convertible into, or exchangeable
for, Membership Securities of any other class or series or securities of any
other kind, including securities issued by Protective Life or any of its
affiliates, and, if so, the price or rate of conversion or exchange and any
method of adjusting the same; (vii) the limitations and restrictions, if any, to
be applicable while any Preferred Securities of such series are outstanding upon
the payment of dividends or making of other distributions on, and upon the
purchase, redemption or other acquisition by PLC Capital of, Common Securities
or any other class of Membership Securities or any other series of Preferred
Securities ranking junior to the Preferred Securities of such series either as
to dividends or upon liquidation; (viii) the conditions or restrictions, if any,
upon the creation of indebtedness of PLC Capital or upon the issue of any
additional Membership Securities (including additional Preferred Securities of
such series or of any other series) ranking on a parity with or prior to the
Preferred Securities of such series as to dividends or distributions of assets
upon liquidation; (ix) the voting rights, if any, of Preferred Securities of
such series; and (x) any other relative rights, powers and duties as shall not
be inconsistent with the L.L.C. Agreement. In connection with the foregoing the
Managing Member is authorized to take any action, including amendment of the
L.L.C. Agreement, without the vote or approval of any holder of Preferred
Securities (other than the requisite vote or approval, if any, of holders of any
outstanding series of Preferred Securities to the extent provided in the Action
relating to such series), including any Action to create under the provisions of
the L.L.C. Agreement a class (or series of a class) or group of Membership
Securities that was not previously outstanding.
All Preferred Securities of any one series shall be identical with each
other in all respects, except that Preferred Securities of any one series issued
at different times may differ as to the dates from which dividends, if any,
thereon shall be cumulative. All series of Preferred Securities shall rank
equally and be
15
<PAGE>
identical in all respects, except as permitted by the L.L.C. Agreement
provisions summarized in the preceding paragraph, and all Preferred Securities
shall rank senior to the Common Securities both as to dividends and upon
liquidation. The Common Securities are also subject to all the rights, powers
and duties of the Preferred Securities as are established in the L.L.C.
Agreement and as shall be established in any Actions of the Managing Member
pursuant to the authority summarized in the preceding paragraph.
DESCRIPTION OF CERTAIN CONTRACTUAL BACK-UP OBLIGATIONS OF PROTECTIVE LIFE
THE GUARANTEE OF CERTAIN PAYMENTS
Protective Life, by an irrevocable and unconditional subordinated guarantee
(the "Guarantee"), will agree, to the limited extent set forth herein and in the
related Prospectus Supplement, to pay in full, to the holders of Preferred
Securities of any series, the Guarantee Payments (as defined below), as and when
due, regardless of any defense, right of set-off or counterclaim which PLC
Capital may have or assert. The Guarantee will constitute a guarantee of payment
and may be enforced by holders of Preferred Securities directly against
Protective Life. The following payments to the extent not made by PLC Capital
(the "Guarantee Payments") will be subject to the Guarantee (without
duplication): (i) any accumulated and unpaid dividends which have theretofore
been declared on the Preferred Securities of such series out of funds held by
PLC Capital and legally available therefor; (ii) the redemption price (including
all accumulated and unpaid dividends whether or not declared) payable, out of
funds held by PLC Capital and legally available therefor, with respect to any
Preferred Securities of such series called for redemption by PLC Capital; and
(iii) in the event of any dissolution, liquidation or winding-up of PLC Capital,
the lesser of (a) the aggregate of the liquidation preference of the Preferred
Securities of such series and all accumulated and unpaid dividends (whether or
not declared) to the date of payment and (b) the amount of remaining assets of
PLC Capital legally available to holders of Preferred Securities of such series.
In addition, Protective Life will unconditionally and irrevocably guarantee, in
the event of any exchange by PLC Capital of Preferred Securities for
Subordinated Debentures (to the extent permitted by the Action for such
Preferred Securities), delivery of certificates representing the proper amount
of such Subordinated Debentures in conformity with the Action for such series.
Protective Life's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by Protective Life to the holders of
Preferred Securities of such series or by causing PLC Capital to pay such
amounts to such holders. The Prospectus Supplement relating to a series of
Preferred Securities will describe any additional covenants or other terms of
the Guarantee with respect to such series. The Guarantee will rank PARI PASSU
with Subordinated Debentures and, accordingly, will be subordinate and junior in
right of payment to all Senior Indebtedness in a manner identical to that
described under "Description of Debt Securities of Protective Life --
Subordination under the Subordinated Indenture."
THE GUARANTEE IS NOT A GUARANTEE THAT ANY PARTICULAR DIVIDEND OR AMOUNT ON
LIQUIDATION, DISSOLUTION OR WINDING UP WILL BE PAID; RATHER, THE GUARANTEE IS
SOLELY A GUARANTEE OF PAYMENT OF DIVIDENDS, IF ANY, THAT ARE IN FACT DECLARED
OUT OF FUNDS HELD BY PLC CAPITAL AND LEGALLY AVAILABLE THEREFOR, OF THE
REDEMPTION PRICE PAYABLE, OUT OF FUNDS HELD BY PLC CAPITAL AND LEGALLY AVAILABLE
THEREFOR, WITH RESPECT TO THE PREFERRED SECURITIES OF ANY SERIES CALLED FOR
REDEMPTION BY PLC CAPITAL AND OF AMOUNTS, IF ANY, AVAILABLE FOR DISTRIBUTION TO
THE HOLDERS OF THE PREFERRED SECURITIES OF ANY SERIES UPON LIQUIDATION,
DISSOLUTION OR WINDING UP AFTER SATISFACTION OF ALL CREDITORS OF PLC CAPITAL.
SUBORDINATED DEBENTURES
Protective Life will issue Subordinated Debentures to PLC Capital to
evidence the loans to be made by PLC Capital of the proceeds of (i) Preferred
Securities of each series and (ii) Common Securities and related capital
contributions ("Common Securities Payments"). See "Description of Debt
Securities of Protective Life" for a summary of the material provisions of the
Subordinated Indenture, under which the Subordinated Debentures will be issued.
References to provisions of the Subordinated Indenture in this Prospectus and in
the relevant Prospectus Supplement are qualified in their entirety by reference
to the text of the Subordinated Indenture, a form of which has been filed as an
exhibit to the Registration Statement of which this Prospectus forms a part. The
aggregate dollar amount of the Subordinated
16
<PAGE>
Debentures relating to Preferred Securities of any series will be set forth in
the Prospectus Supplement for such series and will equal the aggregate
liquidation preference of the Preferred Securities of such series, together with
the related Common Securities Payments.
PLAN OF DISTRIBUTION
Protective Life may sell any of the Debt Securities and Preferred Stock, and
PLC Capital may sell any of the Preferred Securities, being offered hereby in
any one or more of the following ways from time to time: (i) through agents;
(ii) to or through underwriters; (iii) through dealers; and (iv) directly by
Protective Life or PLC Capital, as the case may be, to purchasers.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
Offers to purchase Offered Securities may be solicited by agents designated
by Protective Life or PLC Capital, as the case may be, from time to time. Any
such agent involved in the offer or sale of the Offered Securities in respect of
which this Prospectus is delivered will be named, and any commissions payable by
Protective Life or PLC Capital to such agent will be set forth, in the
applicable Prospectus Supplement. Unless otherwise indicated in such Prospectus
Supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its appointment. Any such agent may be deemed to be an
underwriter, as that term is defined in the Securities Act, of the Offered
Securities so offered and sold.
If Offered Securities are sold by means of an underwritten offering,
Protective Life and/or PLC Capital will execute an underwriting agreement with
an underwriter or underwriters at the time an agreement for such sale is
reached, and the names of the specific managing underwriter or underwriters, as
well as any other underwriters, and the terms of the transaction, including
commissions, discounts and any other compensation of the underwriters and
dealers, if any, will be set forth in the Prospectus Supplement which will be
used by the underwriters to make resales of the Offered Securities in respect of
which this Prospectus is delivered to the public. If underwriters are utilized
in the sale of the Offered Securities in respect of which this Prospectus is
delivered, the Offered Securities will be acquired by the underwriters for their
own account and may be resold from time to time in one or more transactions,
including negotiated transactions, at fixed public offering prices or at varying
prices determined by the underwriter at the time of sale. Offered Securities may
be offered to the public either through underwriting syndicates represented by
managing underwriters or directly by the managing underwriters. If any
underwriter or underwriters are utilized in the sale of the Offered Securities,
unless otherwise indicated in the Prospectus Supplement, the underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters with respect to a sale of
Offered Securities will be obligated to purchase all such Offered Securities if
any are purchased.
If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, Protective Life or PLC Capital, as the case
may be, will sell such Offered Securities to the dealer as principal. The dealer
may then resell such Offered Securities to the public at varying prices to be
determined by such dealer at the time of resale. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities Act, of the
Offered Securities so offered and sold. The name of the dealer and the terms of
the transaction will be set forth in the Prospectus Supplement relating thereto.
Offers to purchase Offered Securities may be solicited directly by
Protective Life or PLC Capital, as the case may be, and the sale thereof may be
made by Protective Life or PLC Capital, as the case may be, directly to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any resale thereof. The terms
of any such sales will be described in the Prospectus Supplement relating
thereto.
17
<PAGE>
Agents, underwriters and dealers may be entitled under relevant agreements
with Protective Life and/or PLC Capital to indemnification by Protective Life
and/or PLC Capital against certain liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments which such agents,
underwriters and dealers may be required to make in respect thereof.
Agents, underwriters and dealers may be customers of, engage in transactions
with, or perform services for, Protective Life and its subsidiaries (including
PLC Capital) in the ordinary course of business.
Offered Securities may also be offered and sold, if so indicated in the
Prospectus Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms"), acting as principals for their own
accounts or as agents for Protective Life or PLC Capital, as the case may be.
Any remarketing firm will be identified and the terms of its agreement, if any,
with Protective Life or PLC Capital and its compensation will be described in
the Prospectus Supplement. Remarketing firms may be deemed to be underwriters,
as such term is defined in the Securities Act, in connection with the Offered
Securities remarketed thereby. Remarketing firms may be entitled under
agreements which may be entered into with Protective Life to indemnification or
contribution by Protective Life and/or PLC Capital against certain civil
liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for Protective
Life and its subsidiaries (including PLC Capital) in the ordinary course of
business.
If so indicated in the applicable Prospectus Supplement, Protective Life or
PLC Capital, as the case may be, may authorize agents, underwriters or dealers
to solicit offers by certain institutions to purchase Offered Securities from
Protective Life or PLC Capital, as the case may be, at the public offering
prices set forth in the applicable Prospectus Supplement pursuant to delayed
delivery contracts ("Contracts") providing for payment and delivery on a
specified date or dates. A commission indicated in the applicable Prospectus
Supplement will be paid to underwriters, dealers and agents soliciting purchases
of Offered Securities pursuant to Contracts accepted by Protective Life.
LEGAL OPINIONS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of any Offered Securities offered hereby and of the Guarantee and the
Subordinated Debentures relating to any Preferred Securities of PLC Capital
offered hereby will be passed upon for Protective Life and PLC Capital by
Debevoise & Plimpton, 875 Third Avenue, New York, New York and for any
underwriters or agents by Sullivan & Cromwell, 125 Broad Street, New York, New
York. Debevoise & Plimpton and Sullivan & Cromwell may rely upon Richards,
Layton & Finger, P.A., special Delaware counsel to Protective Life and PLC
Capital, as to all matters of Delaware law relating to any Preferred Securities.
EXPERTS
The consolidated balance sheets of Protective Life as of December 31, 1993
and 1992 and the related consolidated statements of income, stockholder's equity
and cash flows for each of the three years in the period ended December 31, 1993
and the related financial statement schedules which are incorporated by
reference or included in Protective Life's Annual Report on Form 10-K for the
year ended December 31, 1993 and which have been incorporated by reference in
this Prospectus, have been incorporated herein in reliance on the report, which
includes an explanatory paragraph with respect to changes in Protective Life's
methods of accounting for certain investments in debt and equity securities in
1993 and postretirement benefits other than pensions in 1992, of Coopers &
Lybrand, independent accountants, given on the authority of that firm as experts
in accounting and auditing.
With respect to the unaudited interim financial information for Protective
Life Corporation and subsidiaries for the three-month periods ended March 31,
1994 and 1993 incorporated by reference in this Prospectus, the independent
accountants have reported that they have applied limited procedures in
accordance with professional standards for a review of such information.
However, their separate report included in the Registration Statement of which
this Prospectus forms a part states that they did not audit and they do not
express an opinion on such interim financial information. Accordingly, the
18
<PAGE>
degree of reliance on their report on such information should be restricted in
light of the limited nature of the review procedures applied. The accountants
are not subject to the liability provisions of Section 11 of the Securities Act
of 1933 for their report on the unaudited interim financial information because
that report is not a "report" or a "part" of the Registration Statement prepared
or certified by the accountants within the meaning of Sections 7 and 11 of the
Act.
The financial statements of Wisconsin National Life Insurance Company as of
December 31, 1992 and 1991, and for each of the years in the two year period
ended December 31, 1992, incorporated by reference in or included in Protective
Life's Current Report on Form 8-K, dated August 4, 1993, have been incorporated
herein by reference in reliance upon the report of KPMG Peat Marwick,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
19
<PAGE>
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN CONNECTION WITH THE
OFFER HEREUNDER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PROTECTIVE LIFE CORPORATION, PLC
CAPITAL L.L.C. OR THE UNDERWRITERS. THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY THE SERIES A PREFERRED SECURITIES IN ANY JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY SALE MADE
HEREUNDER AND THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS
SUPPLEMENT OR THE PROSPECTUS OR IN THE AFFAIRS OF PROTECTIVE LIFE CORPORATION OR
PLC CAPITAL L.L.C. SINCE THE DATE HEREOF.
----------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
PLC Capital L.L.C.............................. S-3
Protective Life Corporation.................... S-3
Certain Investment Considerations.............. S-6
Capitalization of Protective Life.............. S-8
Use of Proceeds................................ S-8
Selected Consolidated Financial Data of
Protective Life Corporation.................. S-9
Terms of the Series A Preferred Securities..... S-11
Description of the Guarantee................... S-21
Description of the Series A Subordinated
Debentures................................... S-22
Certain Federal Income Tax Considerations...... S-26
ERISA Matters.................................. S-29
Underwriting................................... S-30
Legal Opinions................................. S-31
PROSPECTUS
Available Information.......................... 2
Incorporation of Certain Documents by
Reference.................................... 2
Protective Life Corporation.................... 3
PLC Capital L.L.C. ............................ 4
Use of Proceeds................................ 4
Ratios of Consolidated Earnings to Fixed
Charges...................................... 4
Description of Debt Securities of Protective
Life......................................... 5
Description of Capital Stock of Protective
Life......................................... 13
Certain Other Provisions of Protective Life's
Restated Certificate of Incorporation........ 14
Description of Preferred Securities of PLC
Capital...................................... 15
Description of Certain Contractual Back-Up
Obligations of Protective Life............... 16
Plan of Distribution........................... 17
Legal Opinions................................. 18
Experts........................................ 18
</TABLE>
2,200,000 PREFERRED SECURITIES
PLC CAPITAL L.L.C.
GUARANTEED TO THE EXTENT SET FORTH
HEREIN BY
PROTECTIVE LIFE CORPORATION
% CUMULATIVE
MONTHLY INCOME PREFERRED SECURITIES,
SERIES A ("MIPS")
-----------
PROSPECTUS SUPPLEMENT
-----------
GOLDMAN, SACHS & CO.
DEAN WITTER REYNOLDS INC.
KIDDER, PEABODY & CO.
INCORPORATED
THE ROBINSON-HUMPHREY
COMPANY, INC.
REPRESENTATIVES OF THE UNDERWRITERS
- - - --------------------------------------------------------------------------------
- - - --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth those expenses to be incurred by Protective
Life in connection with the issuance and distribution of the securities being
registered. Except for the Securities and Exchange Commission filing fee, all
amounts shown are estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee.................... $ 60,345
Rating agency fees............................................... 75,000
Fees and expenses of Trustees.................................... 25,000
Blue Sky and legal investment fees and expenses.................. 25,000
Printing and engraving expenses.................................. 250,000
Accountant's fees and expenses................................... 85,000
New York Stock Exchange filing fees.............................. 73,700
Legal fees and expenses.......................................... 350,000
Miscellaneous expenses........................................... 25,000
---------
Total........................................................ $ 969,045
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 6.5 of Article VI of Protective Life's Restated Certificate of
Incorporation provides that Protective Life shall indemnify to the fullest
extent permitted by law any person who is made or is threatened to be made a
party or is involved in any action, suit, or proceeding whether civil, criminal,
administrative or investigative by reason of the fact that he is or was a
director, officer, employee or agent of Protective Life or was serving at the
request of Protective Life as an officer, director, employee or agent of another
corporation, partnership, joint venture, enterprise, or nonprofit entity.
Protective Life is empowered by Section 145 of the Delaware General
Corporation Law, subject to the proceedings and limitations stated therein, to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of Protective Life) by reason of the fact that such person is or was
an officer, employee, agent or director of Protective Life, or is or was serving
at the request of Protective Life as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of Protective
Life, and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. Protective Life may indemnify any
such person against expenses (including attorneys' fees) in an action by or in
the right of Protective Life under the same conditions, except that no
indemnification is permitted without judicial approval if such person is
adjudged to be liable to Protective Life. To the extent such person is
successful on the merits or otherwise in the defense of any action referred to
above, Protective Life must indemnify him against the expenses which he actually
and reasonably incurred in connection therewith.
Policies of insurance are maintained by Protective Life under which
directors and officers of Protective Life are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
As permitted by Section 102 (b)(7) of the Delaware General Corporation Law,
Protective Life's Restated Certificate of Incorporation also provides that no
director shall be personally liable to Protective
II-1
<PAGE>
Life or its stockholders for monetary damages for any breach of fiduciary duty
by such director as a director, except (i) for breach of the director's duty of
loyalty to Protective Life or its stockholders, (ii) for acts or omissions not
in good faith which involve intentional misconduct or a knowing notation of law,
(iii) under Section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper personal benefit.
Protective Life has entered into indemnity agreements with each of its
directors which provide insurance protection in excess of the directors' and
officers' liability insurance maintained by Protective Life and in force at the
time up to $20 million and against certain liabilities excluded from such
liability insurance. The agreements provide generally that, upon the happening
of certain events constituting a change in control of Protective Life,
Protective Life must obtain a $20 million letter of credit upon which the
directors may draw for defense or settlement of any claim relating to
performance of their duties as directors. Protective Life has similar agreements
with certain of its executive officers under which Protective Life is required
to provide up to $10 million in indemnification, although this obligation is not
secured by a commitment to obtain a letter of credit.
ITEM 16. EXHIBITS.
See Index to Exhibits.
ITEM 17. UNDERTAKINGS.
(A) RULE 415 OFFERING.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
Protective Life pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(B) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Protective Life's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
(C) RULE 430A OFFERING.
The undersigned hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by Protective Life pursuant to Rule 424(b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of the
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(D) ACCELERATION OF EFFECTIVENESS.
Insofar as indemnifications for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons, if any,
of the registrant pursuant to the foregoing provisions, or otherwise, the
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 Protective Life of expenses
incurred or paid by a director, officer or controlling person of Protective Life
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, PROTECTIVE LIFE
CORPORATION CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
AMENDMENT NO. 4 TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF BIRMINGHAM, STATE OF
ALABAMA, ON MAY 25, 1994.
PROTECTIVE LIFE CORPORATION
(Registrant)
By: /S/ DRAYTON NABERS, JR.
--------------------------------------
Drayton Nabers, Jr.
President and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, PLC CAPITAL
L.L.C. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF
THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 4
TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF BIRMINGHAM, STATE OF ALABAMA, ON MAY
25, 1994.
PLC CAPITAL L.L.C.
(Registrant)
By PROTECTIVE LIFE CORPORATION
as Managing Member
By: /S/ DRAYTON NABERS, JR.
--------------------------------------
Drayton Nabers, Jr.
President and Chief Executive
Officer
II-4
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 4 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES WITH PROTECTIVE LIFE CORPORATION AND THE MANAGING MEMBER
INDICATED:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- - - -------------------------------------------- ----------------------------------- ------------------------------
<C> <S> <C>
/s/ DRAYTON NABERS, JR. President and Chief Executive
---------------------------------- Officer (Principal Executive May 25, 1994
Drayton Nabers, Jr. Officer) and Director
/s/ JOHN D. JOHNS Executive Vice President and Chief
---------------------------------- Financial Officer (Principal May 25, 1994
John D. Johns Financial Officer)
/s/ JERRY W. DEFOOR Vice President and Controller and
---------------------------------- Chief Accounting Officer May 25, 1994
Jerry W. DeFoor (Principal Accounting Officer)
*
---------------------------------- Chairman of the Board and Director
William J. Rushton III
*
---------------------------------- Director
John W. Woods
*
---------------------------------- Director
Crawford T. Johnson III
*
---------------------------------- Director
William J. Cabaniss, Jr.
*
---------------------------------- Director
H.G. Pattillo
*
---------------------------------- Director
Edward L. Addison
*
---------------------------------- Director
John J. McMahon, Jr.
*
---------------------------------- Director
A.W. Dahlberg
*
---------------------------------- Director
John W. Rouse, Jr.
*
---------------------------------- Director
Robert T. David
*
---------------------------------- Director
Ronald L. Kuehn, Jr.
*
---------------------------------- Director
Herbert A. Sklenar
*By /s/ DEBORAH J. LONG
------------------------------
Deborah J. Long
Attorney-in-Fact
May 25, 1994
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
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<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION NO.
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<S> <C> <C>
1(a) Form of Underwriting Agreement -- Debt Securities..................................................
1(b) Form of Underwriting Agreement -- Preferred Stock..................................................
1(c) Form of Underwriting Agreement -- Preferred Securities.............................................
*4(a) 1985 Restated Certificate of Incorporation of Protective Life Corporation (incorporated by
reference to Exhibit 3(a) to Protective Life Corporation's Form 10-K Annual Report for the year
ended December 31, 1993)
*4(a)(1) Certificate of Amendment of 1985 Restated Certificate of Incorporation of Protective Life
Corporation (incorporated by reference to Exhibit 3(a)(1) to Protective Life Corporation's Form
10-K Annual Report for the year ended December 31, 1993)
*4(a)(2) Certificate of Designation of Junior Participating Cumulative Preferred Stock of Protective Life
Corporation filed with the Secretary of State of Delaware on July 14, 1987 (incorporated by
reference to Exhibit A to Protective Life Corporation's Form 8-K Report filed July 15, 1987)
*4(a)(3) Certificate of Correction of Certificate of Designation of Junior
Participating Cumulative Preferred Stock of the Company filed with the Secretary of State of
Delaware on July 27, 1987 (incorporated by reference to Exhibit 3(a)(4) to Protective Life
Corporation's Form 10-K Annual Report for the year ended December 31, 1987)
4(a)(4) Certificate of Amendment of 1985 Restated Certificate of Incorporation of Protective Life
Corporation (incorporated by reference to Exhibit 3(a)(5) to Protective Life Corporation's Form
10-Q Quarterly Report for the period ended March 31, 1994)........................................
*4(b) Amended By-Laws of Protective Life Corporation, as amended (incorporated by reference to Exhibit B
to Protective Life Corporation's Form 8-K Report, filed May 18, 1983)
*4(c) Certificate of Formation of PLC Capital L.L.C.
4(d) Amended and Restated Limited Liability Company Agreement of PLC Capital L.L.C......................
4(e) Form of Action establishing the Series A Preferred Securities (included as Annex A to Exhibit
4(d)).............................................................................................
4(f) Specimen Series A Preferred Security Certificate (included as Annex B to Exhibit 4(d)).............
*4(g) Form of Senior Indenture between Protective Life Corporation and The Bank of New York, as Trustee
*4(h) Form of Subordinated Indenture between Protective Life Corporation and AmSouth Bank N.A., as
Trustee
*4(i) Form of Guarantee Agreement between Protective Life Corporation and PLC Capital L.L.C.
4(j) Form of Supplemental Indenture No. 1 to the Subordinated Indenture between Protective Life
Corporation and AmSouth Bank N.A., as Trustee.....................................................
4(k) Specimen Series A Subordinated Debenture...........................................................
5(a) Opinion of Debevoise & Plimpton, counsel to Protective Life Corporation and PLC Capital L.L.C., as
to legality of the Debt Securities, the Preferred Stock, the Guarantee and the Preferred
Securities........................................................................................
5(b) Opinion of Richards, Layton & Finger, special Delaware counsel to Protective Life Corporation and
PLC Capital, as to legality of the Preferred Securities...........................................
8(a) Opinion of Debevoise & Plimpton, as to United States tax matters...................................
12(a) Computation of Ratios of Consolidated Earnings to Fixed Charges....................................
15(a) Letter of Coopers & Lybrand........................................................................
23(a) Consent of Coopers & Lybrand.......................................................................
23(b) Consent of KPMG Peat Marwick.......................................................................
23(c) Consent of Debevoise & Plimpton (included in Exhibits 5(a) and 8(a))...............................
23(d) Consent of Richards, Layton & Finger (included in Exhibit 5(b))....................................
*24(c) Power of Attorney of Board of Directors
*25(a) Statement of Eligibility of Trustee on Form T-1 (The Bank of New York)
*25(b) Statement of Eligibility of Trustee on Form T-1 (AmSouth Bank N.A.)
<FN>
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* Previously filed.
</TABLE>
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EXHIBIT 1(A)
DRAFT OF MAY 24, 1994
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
May ___, 1994
To the Representatives of the
several Underwriters to be named in the
respective Pricing Agreements
hereinafter described.
Dear Sirs:
From time to time Protective Life Corporation, a Delaware corporation
(the "Company"), proposes to enter into one or more Pricing Agreements in the
form of Annex I hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified therein) certain of its debt
securities (the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (such Indenture, including any supplement
thereto relating to the Designated Securities, the "Indenture") identified in
such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the
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Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be evidenced
by an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-52831) in
respect of the Securities and Preferred Stock of the Company and the
Preferred Securities of PLC Capital L.L.C., a limited liability company
formed under the laws of the State of Delaware, (collectively, the
"Registered Securities") has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any post-
effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for
delivery to each of the other Underwriters, have been declared effective by
the Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission; and no
stop order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the time such part of
the registration statement become effective but excluding any Forms T-1
and, if applicable, including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule
430A under the Act to be a part of such registration statement at
effectiveness, each as amended at the time such part of the registration
statement become effective, being hereinafter called the "Registration
Statement"; the prospectus (including, if applicable, any prospectus
supplement) relating to the Registered Securities, in the form in which it
has most recently been filed, or transmitted for filing, with the Commis-
sion on or prior to the date of this Agreement, being hereinafter called
the "Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed with the Commission after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration State-
ment shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable Desig-
nated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in
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accordance with Section 5(a) hereof, including any documents incorporated
by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (i) in the case of the Registration Statement, not misleading and
(ii) in the case of the Prospectus, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been (i) any
material change in the capital stock or any increase in the long-term debt
of the Company or any of its subsidiaries in excess of $9 million, (ii) any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole or (iii) any change in the
statutory capital or surplus of the Company's subsidiaries engaged in the
business of insurance (each an "Insurance Subsidiary," and collectively,
the "Insurance Subsidiaries"), taken as a whole in excess of $9 million, in
each case otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has been duly
qualified as a foreign corporation for the transaction of business under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so
3
<PAGE>
as to require such qualification, or is subject to no material liability by
reason of the failure to be so qualified in any such jurisdiction;
(f) Protective Life Insurance Company ("Protective Life Insurance")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(g) Protective Life Insurance is duly organized and licensed as an
insurance company in its state of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required to
be so licensed or authorized to conduct its business as described in the
Prospectus, except for any such jurisdiction in which the failure to be so
licensed or authorized would not have a material adverse effort on the
business, financial condition or results of operations of the Company and
its subsidiaries, considered as a whole; and except as otherwise
specifically described in the Prospectus, neither the Company nor
Protective Life Insurance has received any notification from any insurance
regulatory authority to the effect that any additional authorization,
approval, order, consent, license, certificate, permit, registration or
qualification from such insurance regulatory authority is needed to be
obtained by either of the Company or Protective Life Insurance in any case
where it could be reasonably expected that the failure to obtain any such
additional authorization, approval, order, consent, license, certificate,
permit, registration or qualification would have a material adverse effect
on the business, financial position or results of operations of the Company
and its subsidiaries, considered as a whole;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the descriptions
thereof contained in the Prospectus; and all of the issued shares of
capital stock of Protective Life Insurance have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(i) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(j) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement,
4
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and the consummation of the transactions herein and therein contemplated
will not (1) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or Protective Life Insurance is a party or by which the
Company or Protective Life Insurance is bound or to which any of the
property or assets of the Company or Protective Life Insurance is subject,
except, in all such cases, for such conflicts, breaches, violations or
defaults as would not have a material adverse effect on the financial
condition or results of operations of the Company and Protective Life
Insurance taken as a whole or would not affect the validity of or otherwise
have a material adverse effect on the issuance or sale of the Designated
Securities or (2) result in any violation of the provisions of (A) the
Certificate of Incorporation or By-laws of the Company or Protective Life
Insurance or (B) any statute or any order, rule or regulation of any court
or insurance regulatory authority or other governmental agency or body
having jurisdiction over the Company or Protective Life Insurance or any of
their properties; provided, however that in the case of clause (B) of this
paragraph 2(j), this representation and warranty shall not extend to such
violations as would not have a material adverse effect on the financial
condition or results of operations of the Company and Protective Life
Insurance taken as a whole or would not affect the validity of or otherwise
have a material adverse effect on the issuance or sale of the Designated
Securities; provided further, that insofar as this representation and
warranty relates to the performance by the Company of its obligations under
this Agreement, the Pricing Agreement or the Indenture relating to the
Designated Securities, such performance is subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and no consent, approval, authorization,
order, registration or qualification of or with any such court or insurance
regulatory authority or other governmental agency or body having
jurisdiction over the Company or Protective Life Insurance is required for
the issue and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement or any Pricing Agreement or
the Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act or
from the Tennessee Insurance Commissioner and such consents, approvals,
authorizations, orders, registrations or qualifications as may be required
under state securities or Blue Sky laws or insurance securities laws in
connection with the purchase and distribution of the Securities by the
Underwriters and except those which, if not obtained, will not have a
material adverse effect on the financial condition or results of operations
of the Company and Protective Life Insurance taken as a whole or would not
affect the validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Securities;
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which could reasonably be
expected to have, individually or in the aggregate, a material adverse
effect on the consolidated financial position, stockholders' equity (if
applicable), total surplus (if applicable) or results of operations of the
Company and its subsidiaries taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several
5
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Underwriters propose to offer such Designated Securities for sale upon the terms
and conditions set forth in the Prospectus as amended or supplemented.
4. Unless otherwise specified in the applicable Pricing Agreement,
global certificates for Designated Securities to be purchased by each
Underwriter pursuant to such Pricing Agreement, registered in the name Cede &
Co., shall be delivered by or on behalf of the Company to the Representatives
for the account of such Underwriter, against payment by such Underwriter or on
its behalf of the purchase price therefor by certified or official bank check or
checks, payable to the order of the Company or, if so requested by the Company,
by wire transfer to a bank account specified by the Company and described in
Schedule II to such Pricing Agreement, in the funds specified in such Pricing
Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives and
the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the Repre-
sentatives (which approval will not be unreasonably withheld) and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such other time as may be required
by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such Securities and prior to the
Time of Delivery for such Securities which shall be reasonably disapproved
by the Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and during such same period
to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such United States
jurisdictions as the Representatives may reasonably request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction and
provided further that in connection therewith the Company shall not be
required to qualify such
6
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Designated Securities for offering and sale under the securities laws of
any such jurisdiction for a period in excess of nine months after the
initial time of issue of the Prospectus as amended or supplemented relating
to such Designated Securities;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, provided, however, that in case any Underwriter is required
under the Act to deliver a prospectus in connection with the offering or
sale of the Designated Securities at any time more than nine months after
the date of the Pricing Agreement relating to the Designated Securities,
the costs of such preparation and furnishing of such amended or
supplemented Prospectus shall be borne by the Underwriters of such
Designated Securities;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without the
prior written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in connec-
tion with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and, subject to the proviso
to Section 5(c), the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of producing and printing or duplicating any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue
Sky and Legal Investment Memoranda and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged
7
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by securities rating services for rating the Securities; (v) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the cost of qualifying the Securities with the
Depository Trust Company (if applicable); (viii) the fees and expenses of any
Trustee and any agent of any Trustee and the fees and disbursements of counsel
for any Trustee in connection with any Indenture and the Securities; and
(ix) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Sullivan & Cromwell, or other counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Securities, with respect to the incor-
poration of the Company, the validity of the Indenture, the Designated
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Deborah J. Long, Esq., Senior Vice President and General Counsel
of the Company, or any successor having substantially equivalent
responsibilities with the Company, shall have furnished to the
Representatives such counsel's written opinion, dated each Time of Delivery
for such Designated Securities, respectively, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
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(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented, and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform in all material respects to the description thereof in the
Prospectus as amended or supplemented; and all of the issued shares of
capital stock of Protective Life Insurance have been duly and validly
authorized and issued, are fully paid and non-assessable and (except
for directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of any perfected security interests and,
to such counsel's best knowledge, any other security interests,
claims, liens or encumbrances;
(iii) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of the Designated Securities, the
Indenture, this Agreement, any Pricing Agreement, and the consummation
of the transactions herein and therein contemplated will not (i)
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or Protective
Life Insurance is a party or by which the Company or Protective Life
Insurance is bound or to which any of the property or assets of the
Company or Protective Life Insurance is subject, except, in all such
cases, for such conflicts, breaches, violations or defaults as would
not have a material adverse effect on the financial condition of the
Company and Protective Life Insurance taken as a whole or would not
have a material adverse effect on the issuance or sale of the
Designated Securities, or (ii) result in any violation of the
provisions of (A) the Certificate of Incorporation or By-Laws of the
Company or Protective Life Insurance or (B) any statute known to
such counsel to be applicable to the Company or Protective Life
Insurance or any of their respective properties, or any order, rule
or regulation known to such counsel of any court or insurance
regulatory authority or other governmental agency or body having
jurisdiction over the Company or Protective Life Insurance or any of
their respective properties, except, with respect to clause (B) of
this paragraph (iii), such violations as would not have a material
adverse effect on the financial condition or results of operations
of the Company and Protective Life Insurance taken as a whole or
would not affect the validity of or otherwise have a material
adverse effect on the issuance or sale of the Designated
Securities; and except that for purposes of this paragraph (iii)
such counsel need not express any opinion as to any violation
of any federal or state securities laws or Blue Sky or
insurance securities laws; provided further, that
insofar as performance by the Company of its obligations under the
Indenture, this Agreement and the Pricing Agreement relating to the
Designated Securities is concerned, such counsel need not express any
opinion as to bankruptcy, insolvency, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and
as to general equity principles;
(iv) To the best of such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification of or
with any court or insurance regulatory authority or other governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries is required for the issue and sale of the Designated
Securities being delivered at such Time of Delivery or the
consummation by the Company of the transactions contemplated by this
Agreement, any Pricing Agreement, the Designated Securities or the
Indenture, except such as have been, or will have been prior to each
Time of Delivery, obtained under the Act, the Trust Indenture Act and
such consents, approvals, authorizations, orders, registrations or
qualifications as may be
9
<PAGE>
required under state securities or Blue Sky laws or insurance
securities laws in connection with the purchase and distribution of
the Designated Securities by the Underwriters, and except those which,
if not obtained, would not have a material adverse effect on the
financial condition or results of operation of the Company and its
subsidiaries taken as a whole;
(v) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject of a character required
under the Federal securities laws to be disclosed in the Registration
Statement or Prospectus which are not adequately disclosed in the
Registration Statement or Prospectus;
(vi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related notes, the financial statement schedules and
other financial and statistical data included therein as to which such
counsel need express no opinion), when they become effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder;
In rendering the opinion required by subsection (c) of this Section, (i)
such counsel may state that she is admitted to the Bar of the State of Alabama
only, and (ii) such counsel may rely (A) as to any matter to which you consent
(which consent shall not be unreasonably withheld), to the extent specified in
such opinion, upon the opinions (copies of which shall have been provided to the
Representatives) of other counsel in good standing whom such counsel believes to
be reliable, provided that such counsel shall state that she believes that both
she and the Representatives are justified in relying on such opinions and (B) as
to matters of fact, upon certificates of officers and representatives of the
Company and of public officials (copies of which shall have been provided to the
Representatives), provided that such counsel shall state that she believes that
both she and the Representatives are justified in relying upon such
certificates.
Such counsel shall also have stated that, while she has not herself checked
the accuracy or completeness of or otherwise verified, and is not passing upon
and assumes no responsibility for the accuracy or completeness of, the
statements contained in the Registration Statement or the Prospectus, in the
course of her review and discussion of the contents of the Registration
Statement and Prospectus and any amendment or supplement thereto with certain
officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to her attention
that would cause her to believe that the Registration Statement or the
Prospectus, as amended or supplemented, as of the date of the Pricing Agreement
with respect to the Designated Securities and the Time of Delivery for such
Designated Securities (other than the financial statements and related notes,
the financial statement schedules, other financial and statistical data
included therein and the Statement of Eligibility of the Trustee on
Form T-1 under the Trust Indenture Act as to which she need express no opinion)
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) Debevoise & Plimpton, or other counsel for the Company
satisfactory to the Representatives, shall have furnished to the Represen-
tatives their written opinion, dated the
10
<PAGE>
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Designated Securities have been duly authorized,
issued, executed, authenticated and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and to general
equity principles (regardless of whether considered in a proceeding at
law or in equity); and the Designated Securities conform in all
material respects to the description thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the Trustee, the Indenture constitutes a valid and
legally binding instrument enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and to general
equity principles (regardless of whether considered in a proceeding at
law or in equity); the Indenture has been duly qualified under the
Trust Indenture Act; and the Indenture conforms in all material
respects to the description thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Securities;
(iii) This Agreement and the Pricing Agreement with respect
to the Designated Securities being delivered at such Time of Delivery
have been duly authorized, executed and delivered by the Company;
(iv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related notes, the financial statement
schedules and other financial and statistical data included therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; and
(v) The statements contained in the Prospectus under the
caption "Description of Debt Securities of Protective Life" and the
corresponding sections and any section describing tax matters in any
prospectus supplement relating to the Designated Securities being
delivered at such Time of Delivery, insofar as such statements
constitute summaries of certain provisions of the documents or U.S.
tax laws referred to therein, fairly summarize the material provisions
of such documents or U.S. tax laws.
In rendering the foregoing opinion, Debevoise & Plimpton may state
that they express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States, the laws of the State of New York and The
General Corporation Law of the State of Delaware.
11
<PAGE>
Debevoise & Plimpton shall also have stated that, while they have not
themselves checked the accuracy or completeness of or otherwise verified, and
are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or the
Prospectus, except to the limited extent stated in paragraphs (i), (ii) and (v)
above, in the course of their review and discussion of the contents of the
Registration Statement and the Prospectus with certain officers and employees of
the Company and its independent accountants, but without independent check or
verification, no facts have come to the attention of such counsel that would
cause such counsel to believe that the Registration Statement or the Prospectus,
as amended or supplemented, as of the date of the Pricing Agreement with respect
to the Designated Securities and the Time of Delivery for such Designated
Securities (other than the financial statements and related notes, the financial
statement schedules, and other financial and statistical data included therein,
and except for the Statement of Eligibility of the Trustee on Form T-1 under the
Trust Indenture Act, as to which such counsel need express no opinion) contained
or contains an untrue statement of a material fact or omitted or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities, the
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the date of the Pricing Agreement and a
letter dated such Time of Delivery, respectively, to the effect set forth
in Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(f) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented there shall not have been any
change in the capital stock or any increase in the long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity, total surplus (if
applicable) or results of operations of the Company and its subsidiaries
(in the case of the Insurance Subsidiaries on either a GAAP or statutory
basis), otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, the effect of which, in any such case described
above, is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus as amended or
supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in any rating
of the Company or Protective Life Insurance or the rating accorded the
Company's debt securities by Moody's Investors Service, Inc., Standard &
Poor's Corporation, A.M. Best Company, Inc. or Duff & Phelps Inc. and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, any such
rating;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on
12
<PAGE>
commercial banking activities in New York declared by either Federal or New
York State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
National Emergency or war, if the effect of any such event specified in
this clause (iii) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated by the Prospectus as amended and supplemented; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the case of the
Prospectus, as amended or supplemented, or any other such prospectus, in light
of the circumstances in which they were made, not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities and
provided, further, that the Company shall not be liable to any Underwriter under
the indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus or any preliminary prospectus supplement to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact such
Underwriter sold Designated Shares to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) in any case where such delivery is required by the
Act if such Underwriter failed to make reasonable efforts generally
consistent with the then prevailing industry practice to effect such
delivery and the Company has previously furnished copies thereof in sufficient
quantities to such Underwriter (or to the Representatives) and the loss,
claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary
Prospectus or any preliminary prospectus supplement which was corrected in
the Prospectus (excluding incorporated documents) (or the Prospectus as
amended or supplemented (excluding incorporated documents)).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims, dam-
ages or liabilities (or actions in respect thereof) arise out
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<PAGE>
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus,
as amended or supplemented, or any such prospectus, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. In no event,
shall any indemnifying party be liable for the fees and expenses of more than
one counsel (in addition to local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by
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<PAGE>
the Company bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
15
<PAGE>
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the aggre-
gate principal amount of Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated Securities, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Designated Securities of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Securities shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Section 6 and Section 8 hereof; but, if for any
other reason Designated Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
the Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered
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<PAGE>
or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement: Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
-------------------------------
Name:
Title:
17
<PAGE>
ANNEX I
PRICING AGREEMENT
[Goldman, Sachs & Co., or other Lead Representative]
[Names of Co-Representatives, if any]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o Goldman, Sachs & Co.,]
85 Broad Street,
New York, New York 10004.
........., 19..
Dear Sirs:
Protective Life Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ........, 1994 (the "Underwriting Agreement"), to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The Represen-
tatives designated to act on behalf of the Representatives and on behalf of each
of the Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the
I-1
<PAGE>
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us [One for the Issuer and each of the Representatives plus one
for each counsel] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
-------------------------------
Name:
Title:
Accepted as of the date hereof:
[Goldman, Sachs & Co., or other Lead Representative]
[Name(s) of Co-Representative(s)]
By:
---------------------------------
[(Goldman, Sachs & Co.)]
[Name(s) of Co-Representative Corporation(s)]
By:
-------------------------------------------
Name:
Title:
- - - ----------------------------------------------
[Name(s) of Co-Representative Partnership(s)]
On behalf of each of the Underwriters
I-2
<PAGE>
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
[Goldman, Sachs & Co. or other Lead Representative]. . . . $
[Name[(s) of Co-Representative(s)] . . . . . . . . . . . .
[Names of other Underwriters]. . . . . . . . . . . . . . .
-----------
Total. . . . . . . . . . . . . . . . . . . . . . $ -----------
-----------
I-3
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures]
due
AGGREGATE PRINCIPAL AMOUNT:
[$ ]
PRICE TO PUBLIC:
__% of the principal amount of the Designated Securities,
plus accrued interest from to
[and accrued amortization, if any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
__% of the principal amount of the Designated Securities,
plus accrued interest from to
[and accrued amortization, if any, from to ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[[New York] Clearing House funds]
[Immediately Available Funds]
INDENTURE:
[Indenture dated , 1994, between the Company
and The Bank of New York, as Trustee]
[Subordinated Indenture dated , 1994, between
the Company and AmSouth Bank, N.A., as Trustee]
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
I-4
<PAGE>
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise
than through the sinking fund, in whole or in part at the option of the
Company, in the amount of [$] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling in or after , , at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their principal amount
plus accrued interest][,together with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an additional [$] principal
amount of Designated Securities in the years through at 100% of their
principal amount plus accrued interest].
[IF SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest. Initial
annual interest rate will be %, and thereafter annual interest rate will
be adjusted on , and to a rate not less than % of
the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity date] prior
to such [insert maturity date].]
I-5
<PAGE>
[IF SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through and thereafter will be
adjusted [monthly] [on each , , ________________
and ] [to an annual rate of % above the average rate for
-year [month] [securities] [certificates of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate for
-month Treasury bills plus % of Interest Differential (the excess, if any, of
(i) then current weekly average per annum secondary market yield for -
month certificates of deposit over (ii) then current interest yield equivalent
of the weekly average per annum market discount rate for -month Treasury
bills); [from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS] *:
- - - ---------------
* A description of particular tax, accounting or other unusual features (such as
the addition of event risk provisions) of the Securities should be set forth,
or referenced to an ATTACHED and ACCOMPANYING description, if necessary to
ensure agreement as the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
I-6
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
financial statement schedules (and, if applicable, prospective financial
statements and/or pro forma financial information) audited by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iii) On the basis of limited procedures, not constituting an audit
conducted in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited consolidated financial statements
and other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since
the date of the latest audited consolidated financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries who have responsibility for financial and
accounting matters and such other inquiries and procedures (including those
for a review of interim financial information as described in SAS No. 71)
as may be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus, for them to be
in conformity with generally accepted accounting principles;
(B) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q, incorporated by reference in the Prospectus, do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q
and the related published rules and regulations;
(C) any unaudited pro forma condensed consolidated financial
statements included in or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X and that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
II-1
<PAGE>
(D) as of a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock,
increase in long-term debt, or any decreases in consolidated net
current assets or shareholder's equity of the Company and its
subsidiaries, or any decreases in consolidated net sales or in the
total or per share amounts of income before extraordinary items or of
net income, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in all instances for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (iii) above, they have carried out certain
specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including all documents incorporated by
reference therein), in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
II-2
<PAGE>
EXHIBIT 1(B)
DRAFT OF MAY 24, 1994
PROTECTIVE LIFE CORPORATION
PREFERRED STOCK
(PAR VALUE $1.00 PER SHARE)
----------
UNDERWRITING AGREEMENT
May __, 1994
To the Representatives of the several
Underwriters to be named in the respective
Pricing Agreements hereinafter described.
Dear Sirs:
From time to time Protective Life Corporation, a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain shares of its Preferred Stock (par value $1.00 per
share) (the "Shares") specified in Schedule II to such Pricing Agreement (with
respect to such Pricing Agreement, the "Firm Shares"). If specified in such
Pricing Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of shares, specified in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Shares"). The
Firm Shares and the Optional Shares, if any, which the Underwriters elect to
purchase pursuant to Section 3 hereof are herein collectively called the
"Designated Shares."
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the resolution or resolutions of the board of directors of the Company
identified in such Pricing Agreement.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Designated Shares, for whom the firms designated as
representatives of the Underwriters of such Designated Shares in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. This Underwriting Agreement shall not
be construed as an obligation of the Company to sell any of the Shares or as an
obligation of any of the Underwriters to purchase any of the Shares. The
obligation of the Company to issue and sell any of the Shares and the obligation
of any of the Underwriters to purchase any of the Shares shall be evidenced by
the Pricing Agreement with respect to the Designated Shares specified therein.
Each Pricing Agreement shall specify the aggregate number of the Firm Shares,
the maximum number of Optional Shares, if any, the initial
<PAGE>
public offering price of such Firm and Optional Shares or the manner of
determining such price, the purchase price to the Underwriters of such
Designated Shares, the names of the Underwriters of such Designated Shares, the
names of the Representatives of such Underwriters, the number of such Designated
Shares to be purchased by each Underwriter and the commission, if any, payable
to the Underwriters with respect thereto and shall set forth the date, time and
manner of delivery of such Firm and Optional Shares, if any, and payment
therefor. The Pricing Agreement shall also specify (to the extent not set forth
in the registration statement and prospectus with respect thereto) the terms of
such Designated Shares. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-52831) in
respect of the Shares and Debt Securities of the Company and the Preferred
Securities of PLC Capital L.L.C., a limited liability company formed under
the laws of the State of Delaware, (collectively, the "Registered
Securities") has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated
by reference in the prospectus included therein, to the Representatives
for delivery to each of the other Underwriters have been declared
effective by the Commission in such form; no other document
with respect to such registration statement or document incorporated by
reference therein has heretofore been filed, or transmitted for filing,
with the Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective, each as amended at the time such part of the registration
statement became effective but excluding any Forms T-1 and, if applicable,
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be a part of such registration statement at effectiveness, being
hereinafter called the "Registration Statement"; the prospectus (including,
if applicable, any prospectus supplement) relating to the Registered
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any
2
<PAGE>
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
with the Commission after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Shares in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein (i) in the case of the Registration Statement, not misleading and
(ii) in the case of the Prospectus, in light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Shares through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
3
<PAGE>
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been (i) any
material change in the capital stock or any increase in the long-term debt
of the Company or any of its subsidiaries in excess of $9 million, (ii) any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole or (iii) any change in the
statutory capital or surplus of the Company's subsidiaries engaged in the
business of insurance (each an "Insurance Subsidiary," and collectively,
the "Insurance Subsidiaries"), taken as a whole in excess of $9 million, in
each case otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has been duly
qualified as a foreign corporation for the transaction of business under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction;
(f) Protective Life Insurance Company ("Protective Life Insurance")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
or is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(g) Protective Life Insurance is duly organized and licensed as an
insurance company in its state of incorporation and is duly licensed or
authorized as an insurer in each other jurisdiction where it is required to
be so licensed or authorized to conduct its business as described in the
Prospectus, except for any such jurisdictions in which the failure to be so
licensed or authorized would not have a material adverse effect on the
business, financial condition or results of operations of the Company and
its subsidiaries, considered as a whole; and, except as otherwise
specifically described in the Prospectus, neither the Company nor
Protective Life Insurance has received any notification from any insurance
regulatory authority to the effect that any additional authorization,
approval, order, consent, license, certificate, permit, registration or
qualification from such insurance regulatory authority is needed to be
obtained by either of the Company or Protective Life Insurance in any case
where it could be reasonably expected that the failure to obtain any such
additional authorization, approval, order, consent, license, certificate,
permit, registration or qualification would have a material adverse effect
on the business, financial position or results of operations of the Company
and its subsidiaries, considered as a whole;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been
4
<PAGE>
duly and validly authorized and issued, are fully paid and non-assessable
and conform in all material respects to the descriptions thereof contained
in the Prospectus; and all of the issued shares of capital stock of
Protective Life Insurance have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(i) The Shares have been duly authorized, and, when the Firm Shares
are issued and delivered against payment therefor pursuant to this
Agreement and the Pricing Agreement with respect to such Designated Shares
and, in the case of any Optional Shares, pursuant to Over-allotment Options
(as defined in Section 3 hereof) with respect to such Shares, such
Designated Shares will be duly and validly issued and fully paid and
non-assessable; the Shares conform in all material respects to the
description thereof contained in the Registration Statement and the
Designated Shares will conform in all material respects to the description
thereof contained in the Prospectus as amended or supplemented with respect
to such Designated Shares;
(j) The issue and sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement, any Pricing Agreement and
each Over-allotment Option, if any, and the consummation of the
transactions contemplated herein and therein will not (1) conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or
Protective Life Insurance is a party or by which the Company or Protective
Life Insurance is bound or to which any of the property or assets of the
Company or Protective Life Insurance is subject, except, in all such cases,
for such conflicts, breaches, violations or defaults as would not have a
material adverse effect on the financial condition or results of operations
of the Company and Protective Life Insurance taken as a whole or would not
affect the validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Shares or (2) result in any violation
of the provisions of (A) the Certificate of Incorporation or By-laws of
the Company or Protective Life Insurance or (B) any statute or any order,
rule or regulation of any court or insurance regulatory or other
governmental agency or body having jurisdiction over the Company or
Protective Life Insurance or any of their properties; provided,
however that in the case of clause (B) of this paragraph 2(j),
this representation and warranty shall not extend to such violations
as would not have a material adverse effect on the financial
condition or results of operations of the Company and Protective Life
Insurance taken as a whole or would not affect the validity
of or otherwise have a material adverse effect on the issuance or sale of
the Designated Shares; provided further, that insofar as this
representation and warranty relates to the performance by the Company of
its obligations under this Agreement, the Pricing Agreement relating to the
Designated Shares, such performance is subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and no consent, approval, authorization, order,
registration or qualification of or with any such court or insurance
regulatory or other governmental agency or body having jurisdiction over
the Company or Protective Life Insurance is required for the issue and sale
of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or any
5
<PAGE>
Over-allotment Option, except such as have been, or will have been prior to
each Time of Delivery (as defined in Section 4 hereof), obtained under the
Act or from the Tennessee Insurance Commissioner and such consents,
approvals, authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws or insurance securities
laws in connection with the purchase and distribution of the Shares by the
Underwriters and except those which, if not obtained, will not have a
material adverse effect on the financial condition or results of operations
of the Company and Protective Life Insurance taken as a whole or would not
affect the validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Shares; and
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject, which could reasonably be
expected to have, individually or in the aggregate, a material adverse
effect on the consolidated financial position, stockholders' equity (if
applicable), total surplus (if applicable) or results of operations of the
Company and its subsidiaries taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Shares and authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Shares that the Company thereby grants to the Underwriters the right
(an "Over-allotment Option") to purchase at their election up to the number of
Optional Shares set forth in such Pricing Agreement, at the terms set forth in
the Prospectus as amended or supplemented, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from the Representatives
to the Company, given within a period specified in the Pricing Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representatives and the Company
otherwise agree in writing, earlier than or later than the respective number of
business days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Shares to be added to the number of Firm Shares to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Shares shall be, in each case, the
number of Optional Shares which the Company has been advised by the Representa-
tives have been attributed to such Underwriter, provided that, if the Company
has not been so advised, the number of Optional Shares to be so added shall be,
in each case, that proportion of Optional Shares which the number of Firm Shares
to be purchased by such Underwriter under such Pricing Agreement
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bears to the aggregate number of Firm Shares (rounded as the Representatives may
determine to the nearest 100 shares). The total number of Designated Shares to
be purchased by all the Underwriters pursuant to such Pricing Agreement shall be
the aggregate number of Firm Shares set forth in Schedule I to such Pricing
Agreement plus the aggregate number of the Optional Shares which the
Underwriters elect to purchase.
4. Unless otherwise specified in the applicable Pricing Agreement, global
certificates for the Firm Shares and Optional Shares to be purchased by each
Underwriter pursuant to such Pricing Agreement, registered in the name Cede &
Co., shall be delivered by or on behalf of the Company to the Representatives
for the account of such Underwriter, against payment by such Underwriter or on
its behalf of the purchase price therefor by certified or official bank check or
checks, payable to the order of the Company or, if so requested by the Company,
by wire transfer to a bank account specified by the Company and described in
Schedule II to such Pricing Agreement, in the funds specified in such Pricing
Agreement, (i) with respect to the Firm Shares, all at the place and time and
date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "First Time of Delivery" and (ii) with respect
to the Optional Shares, if any, on the time and date specified by the
Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as the Representatives and the Company may agree upon in writing, such
time and date, if not the First Time of Delivery, herein called the "Second Time
of Delivery." Each such time and date for delivery is herein called a "Time of
Delivery."
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Shares in a form approved by the
Representatives (which approval will not be unreasonably withheld) and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Shares or, if applicable, such other time as may be required by
Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such Shares and prior to any Time
of Delivery for such Shares which shall be reasonably disapproved by the
Representatives for such Shares promptly after reasonable notice thereof;
to advise the Representatives promptly of any such amendment or supplement
after any Time of Delivery for such Shares and furnish the Representatives
with copies thereof; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Shares, and during such same period to
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of
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<PAGE>
the Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to the
Shares or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for offering
and sale under the securities laws of such United States jurisdictions as
the Representatives may reasonably request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Shares, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction and provided further that
in connection therewith the Company shall not be required to qualify such
Designated Shares for offering and sale under the securities laws of any
such jurisdiction for a period in excess of nine months after the initial
time of issue of the Prospectus as amended or supplemented relating to such
Designated Shares;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, provided, however, that in case any Underwriter is required
under the Act to deliver a prospectus in connection with the offering or
sale of the Designated Shares at any time more than nine months after the
date of the Pricing Agreement relating to the Designated Shares, the costs
of such preparation and furnishing of such amended or supplemented
Prospectus shall be borne by the Underwriters of such Designated Shares;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission relating thereunder (including at the option
of the Company Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Shares and continuing to and including the earlier of
(i) the termination of trading restrictions for such Designated Shares, as
notified to the
8
<PAGE>
Company by the Representatives and (ii) the last Time of Delivery for such
Designated Shares, not to offer, sell, contract to sell or otherwise
dispose of any securities of the Company (other than pursuant to employee
stock option plans existing or on the conversion of convertible securities
outstanding on the date of such Pricing Agreement) which are substantially
similar to such Designated Shares, without the prior written consent of the
Representatives.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and, subject to the proviso to Section 5(c), the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of producing
and printing or duplicating any Agreement among Underwriters, this Agreement,
any Pricing Agreement, any Blue Sky and Legal Investment Memoranda and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Shares; (v) any filing fees incident to any
required reviews by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing certificates for the
Shares; (vii) the cost and charges of any transfer agent or registrar or
dividend disbursing agent; and (viii) all other costs and expenses incident to
the performance of its obligations hereunder and under any Over-allotment
Options which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Shares by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in or incorporated by reference
in the Pricing Agreement relating to such Designated Shares are, at and as of
each Time of Delivery for such Designated Shares, true and correct, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Shares shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission shall
have been complied with to the Representatives' reasonable satisfaction;
9
<PAGE>
(b) Sullivan & Cromwell, or other counsel for the Underwriters shall
have furnished to the Representatives such opinion or opinions, dated each
Time of Delivery for such Designated Shares, with respect to the
incorporation of the Company, the validity of the Designated Shares being
delivered at such Time of Delivery, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Deborah J. Long, Esq., Senior Vice President and General Counsel
of the Company, or any successor having substantially equivalent
responsibilities with the Company, shall have furnished to the
Representatives such counsel's written opinion, dated each Time of Delivery
for such Designated Shares, respectively, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented, and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable; and
all of the issued shares of capital stock of Protective Life Insurance
have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of any perfected
security interests and, to such counsel's best knowledge, any other
security interests, claims, liens or encumbrances;
(iii) The issue and sale of the Designated Shares being
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of this Agreement, any Pricing Agreement
and each Over-allotment Option, if any, and the consummation of the
transactions herein and therein contemplated will not (i) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or Protective Life Insurance is
a party or by which the Company or Protective Life Insurance is bound
or to which any of the property or assets of the Company or
Protective Life Insurance is subject, except, in all such cases,
for such conflicts, breaches, violations or defaults as would not
have a material adverse effect on the financial condition of the
Company and Protective Life Insurance taken as a whole or would not
have a material adverse effect on the issuance or sale of
10
<PAGE>
the Designated Shares, or (ii) result in any violation of the
provisions of (A) the Certificate of Incorporation or By-Laws of the
Company or Protective Life Insurance or (B) any statute known to such
counsel to be applicable to the Company or Protective Life Insurance
or any of their respective properties, or any order, rule or
regulation known to such counsel of any court or insurance
regulatory authority or other governmental agency or body
having jurisdiction over the Company or Protective Life
Insurance or any of their respective properties, except, with
respect to clause (B) of this paragraph (iii), such violations
as would not have a material adverse effect on the financial
condition or results of operations of the Company and Protective
Life Insurance taken as a whole or would not affect the
validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Shares; and except that for
purposes of this paragraph (iii) such counsel need not express any
opinion as to any violation of any federal or state securities laws or
Blue Sky or insurance securities laws; provided further, that insofar
as performance by the Company of its obligations under this Agreement
and the Pricing Agreement relating to the Designated Shares is
concerned, such counsel need not express any opinion as to bankruptcy,
insolvency, reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and as to general equity
principles;
(iv) To the best of such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification of or
with any court or insurance regulatory authority or other governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries is required for the issue and sale of the Designated
Shares being delivered at such Time of Delivery or the consummation by
the Company of the transactions contemplated by this Agreement, any
Pricing Agreement, or any Over-allotment Option, except such as have
been, or will have been prior to each Time of Delivery, obtained under
the Act and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under
state securities or Blue Sky laws or insurance securities
laws in connection with the purchase and distribution of the
Designated Shares by the Underwriters, and except those which,
if not obtained, would not have a material adverse effect
on the financial condition or results of operations of the Company and
its subsidiaries taken as a whole;
(v) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject of a character required
under the Federal securities laws to be disclosed in the Registration
Statement or Prospectus which are not adequately disclosed in the
Registration Statement or Prospectus; and
(vi) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related notes, the financial statement schedules and
other financial and
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<PAGE>
statistical data included therein as to which such counsel need
express no opinion), when they become effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder;
In rendering the opinion required by subsection (c) of this Section,
(i) such counsel may state that she is admitted to the Bar of the State of
Alabama only, and (ii) such counsel may rely (A) as to any matter to which
you consent (which consent shall not be unreasonably withheld), to the
extent specified in such opinion, upon the opinions (copies of which shall
have been provided to the Representatives) of other counsel in good
standing whom such counsel believes to be reliable, provided that such
counsel shall state that she believes that both she and the Representatives
are justified in relying on such opinions and (B) as to matters of fact,
upon certificates of officers and representatives of the Company and of
public officials (copies of which shall have been provided to the
Representatives), provided that such counsel shall state that she believes
that both she and the Representatives are justified in relying upon such
certificates.
Such counsel shall also have stated that, while she has not herself
checked the accuracy or completeness of or otherwise verified, and is not
passing upon and assumes no responsibility for the accuracy or completeness
of, the statements contained in the Registration Statement or the
Prospectus, in the course of her review and discussion of the contents of
the Registration Statement and Prospectus and any amendment or supplement
thereto with certain officers and employees of the Company and its
independent accountants, but without independent check or verification, no
facts have come to her attention that would cause her to believe that the
Registration Statement or the Prospectus, as amended or supplemented, as of
the date of the Pricing Agreement with respect to the Designated Shares and
the Time of Delivery for such Designated Shares (other than the financial
statements and related notes, the financial statement schedules, other
financial and statistical data included therein and the
Statement of Eligibility of the Trustee on Form T-1 under the
Trust Indenture Act as to which she need express no opinion)
contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) Debevoise & Plimpton, or other counsel for the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinions, dated each Time of Delivery for
such Designated Shares, respectively, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Designated Shares being delivered at such Time of
Delivery have been duly authorized and validly issued and are fully
paid and non-assessable; and the Shares conform in all material
respects to the description thereof contained in the Registration
Statement and the Designated Shares conform in all material respects
to the description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Shares;
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<PAGE>
(ii) This Agreement and the Pricing Agreement with respect
to the Designated Shares being delivered at such Time of Delivery have
been duly authorized, executed and delivered by the Company;
(iii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related notes, the financial statement
schedules and other financial and statistical data included therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; and
(iv) The statements contained in the Prospectus under the
caption "Description of Capital Stock of Protective Life" and the
corresponding sections and any section describing tax matters in any
prospectus supplement relating to the Designated Shares being
delivered at such Time of Delivery, insofar as such statements
constitute summaries of certain provisions of the documents or U.S.
tax laws referred to therein, fairly summarize the material provisions
of such documents or U.S. tax laws.
In rendering the foregoing opinion, Debevoise & Plimpton may state
that they express no opinion as to the laws of any jurisdiction other than
the Federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware.
Debevoise & Plimpton shall also have stated that, while they have not
themselves checked the accuracy or completeness of or otherwise verified,
and are not passing upon and assume no responsibility for the accuracy or
completeness of, the statements contained in the Registration Statement or
the Prospectus, except to the limited extent stated in paragraphs (i)
and (v) above, in the course of their review and discussion of the
contents of the Registration Statement and the Prospectus with certain
officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to the
attention of such counsel that would cause such counsel to believe that the
Registration Statement or the Prospectus, as amended or supplemented, as of
the date of the Pricing Agreement with respect to the Designated Shares and
the Time of Delivery for such Designated Shares (other than the financial
statements and related notes, the financial statement schedules and, other
financial and statistical data included therein, as to which such counsel
need express no opinion) contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
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<PAGE>
(e) On the date of the Pricing Agreement for such Designated Shares
and at each Time of Delivery for such Designated Shares, the independent
accountants of the Company who have certified the financial statements of
the Company and its subsidiaries included or incorporated by reference in
the Registration Statement shall have furnished to the Representatives a
letter, dated the date of the Pricing Agreement, and a letter
dated such Time of Delivery, respectively, to the effect set forth in
Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(f) Since the respective dates as of which information is given in the
Prospectus as amended or supplemented there shall not have been any change
in the capital stock or any increase in the long-term debt of the Company
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity, total surplus (if applicable) or
results of operations of the Company and its subsidiaries (in the case of
the Insurance Subsidiaries on either a GAAP or statutory basis), otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented, the effect of which, in any such case described above, is in
the judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in any rating of
the Company or Protective Life Insurance or the rating accorded the
Company's debt securities or preferred stock by Moody's Investors Service,
Inc., Standard & Poor's Corporation, A.M. Best Company, Inc. or Duff &
Phelps Inc. and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, any such rating;
(h) On or after the date of the Pricing Agreement relating to the
Designated Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this
Clause (iii) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Firm Shares or Optional Shares or both on the terms and in the manner
contemplated by the Prospectus as amended or supplemented; and
(i) The Company shall have furnished or caused to be furnished to the
Representatives at each Time of Delivery for the Designated Shares
certificates of officers of the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of
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<PAGE>
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to
matters set forth in subsections (a) and (f) of this Section and as to such
other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus, as amended or
supplemented, or any other such prospectus, in light of the circumstances in
which they were made, not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Shares, or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Shares
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares and provided, further, that the Company
shall not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus or any preliminary
prospectus supplement to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact such Underwriter sold
Designated Shares to a person as to whom it shall be established that there was
not sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (excluding documents incorporated by reference) in any case
where such delivery is required by the Act if such Underwriter failed to make
reasonable efforts generally consistent with the then prevailing industry
practice to effect such delivery and the Company has previously
furnished copies thereof in sufficient quantities to such Underwriter (or to the
Representatives) and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus or any preliminary prospectus supplement which was
corrected in the Prospectus (excluding incorporated documents) (or the
Prospectus as amended or supplemented (excluding incorporated documents)).
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Shares, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
(i) in the case of the Registration Statement, not misleading and (ii) in the
case of the Prospectus, as
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<PAGE>
amended or supplemented, or any such prospectus, in light of the circumstances
in which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Shares, or any such amend-
ment or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not, be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. In no event, shall any indemnifying
party be liable for the fees and expenses of more than one counsel (in addition
to local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Shares on
the other from the offering of the Designated Shares to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Shares on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
16
<PAGE>
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Shares in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Shares or Optional Shares which it has agreed to purchase under the Pricing
Agreement relating to such Designated Shares, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the purchase
of such Firm Shares or Optional Shares, as the case may be, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to
the Representatives to purchase such Shares on such terms.
In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for
the purchase of such Shares, or the Company notifies the
Representatives that it has so arranged for the purchase of such Shares, the
Representatives or the Company shall have the right to postpone a Time of
Delivery for such Shares for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any
17
<PAGE>
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of the Firm
Shares or Optional Shares, as the case may be, to be purchased at the respective
Time of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Firm Shares or Optional
Shares, as the case may be, which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Shares and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Firm Shares or Optional Shares, as the case may be, which such
Underwriter agreed to purchase under such Pricing Agreement) of the Firm Shares
or Optional Shares, as the case may be, of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares or Optional Shares, as the case may be, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Firm Shares or Optional Shares, as
the case may be, which remains unpurchased exceeds one-eleventh of the aggregate
number of the Firm Shares or Optional Shares, as the case may be, to be
purchased at the respective Time of Delivery, as referred to in subsection (b)
above, or if the Company shall not exercise the right described in subsec-
tion (b) above to require non-defaulting Underwriters to purchase Firm Shares or
Optional Shares, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm Shares or the
Over-allotment Option relating to such Optional Shares, as the case may be,
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Designated Shares.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Firm Shares or Optional Shares with
respect to which such Pricing Agreement shall have been terminated except as
provided in Section 6 and Section 8 hereof; but, if for any other reason,
Designated Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the Representatives,
including fees and reasonable disbursements of counsel, reasonably incurred
by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Shares, but the
18
<PAGE>
Company shall then be under no further liability to any Underwriter with respect
to such Designated Shares except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
-----------------------------
Name:
Title:
19
<PAGE>
ANNEX I
PRICING AGREEMENT
[Goldman, Sachs & Co., or other
Lead Representative]
[Names of Co-Representatives, if any]
As Representatives of the several Underwriters
named in Schedule I hereto,
[c/o Goldman, Sachs & Co.,]
85 Broad Street,
New York, New York 10004
............. 19..
Dear Sirs:
Protective Life Corporation, a Delaware corporation (the "Company"),
proposes subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ............., 1994 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Shares specified in Schedule II hereto (the "Designated
Shares" [consisting of Firm Shares and any Optional Shares the Underwriters may
elect to purchase]). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Shares which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Shares pursuant to Section 12 of
the Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto [and, (b) in the event and to the extent
I-1
<PAGE>
that the Underwriters shall exercise the election to purchase Optional Shares,
as provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company at the purchase price to the Underwriters set out in
Schedule II hereto that portion of the number of Optional Shares as to which
such election shall have been exercised].
[The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Shares set forth
opposite the name of such Underwriter in Schedule I hereto on the terms referred
to in the paragraph above for the sole purpose of covering overallotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Representatives to the Company given within
a period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by the Representa-
tives but in no event earlier than the First Time of Delivery or, unless the
Representatives and the Company otherwise agree in writing, no earlier than two
or later than ten business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please sign and
return to us [One for the Issuer and for each of the Representatives plus one
for each Counsel] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
------------------------------
Name:
Title:
I-2
<PAGE>
Accepted as of the date hereof:
[Goldman, Sachs & Co., or other
Lead Representative]
[Name(s) of Co-Representative(s)]
By:
------------------------------
[(Goldman, Sachs & Co.)]
[Name(s) of Co-Representative
Corporation(s)]
By:
------------------------------
Name:
Title:
- - - ---------------------------------
[(Name(s) of Co-Representative
Partnership(s)]
On behalf of each of the Underwriters
I-3
<PAGE>
SCHEDULE I
[MAXIMUM NUMBER
NUMBER OF OF OPTIONAL
[FIRM] SHARES SHARES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED]
[Goldman, Sachs & Co. or other Lead
Representative]. . . . . . . . . . . .
[Name(s) of Co-Representative(s)]. . . .
[Names of other Underwriters]. . . . . .
--------------- -----------------
Total . . . . . . . . . . . . . . . --------------- -----------------
--------------- -----------------
I-4
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SHARES:
DATE OF BOARD RESOLUTION ESTABLISHING THE DESIGNATED SHARES:
............, 19..
NUMBER OF DESIGNATED SHARES:
Number of Firm Shares:
Maximum Number of Optional Shares:
INITIAL OFFERING PRICE TO PUBLIC:
[$....... per Share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$....... per Share] [Formula]
COMMISSION PAYABLE TO UNDERWRITERS: $....... per Share
[(except that such compensation will be $ per security sold to [certain
institutions])]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[[New York] Clearinghouse Funds]
[Immediately Available Funds]
DIVIDEND RATE:
[.....% per annum]
DIVIDEND PAYMENT DATES:
[months and dates]
DIVIDEND RIGHTS:
[Non-] cumulative, [deferred]
VOTING RIGHTS:
[As described in the draft prospectus
supplement attached hereto.]
I-5
<PAGE>
LIQUIDATION RIGHTS:
[As described in the draft prospectus
supplement attached hereto.]
PREEMPTIVE AND CONVERSION RIGHTS:
[As described in the draft prospectus
supplement attached hereto.]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Shares may be redeemed, [otherwise than through the sinking
fund,] in whole or in part at the option of the Company, on or after
............, .... at the following redemption prices:
REDEMPTION
YEAR PRICE
and thereafter at $..... per share, together in each case with accrued
dividends to the redemption date.]
[On any dividend payment date falling on or after ............, ...., at
the election of the Company, at a redemption price equal to the stated
amount thereof, plus accrued dividends to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
SINKING FUND PROVISIONS:
[None]
[The Designated Shares are entitled to the benefit of a sinking fund to
retire ......... Designated Shares on ............ in each of the years
.... through .... at 100% of their stated amount plus accrued dividends]
[, together with [cumulative] [non-cumulative] redemptions at the option of
the Company to retire an additional ......... Designated Shares in the
years .... through .... at 100% of their stated amount plus accrued
dividends.]
TIME OF DELIVERY:
..........., 19..
I-6
<PAGE>
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
* A description of particular tax, accounting or other unusual features
(including any event risk provisions) of the Designated Shares should be set
forth, or referenced to an ATTACHED and ACCOMPANYING description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
I-7
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
financial statement schedules (and, if applicable, prospective financial
statements and/or pro forma financial information) audited by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(iii) On the basis of limited procedures, not constituting an audit
conducted in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited consolidated financial statements
and other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since
the date of the latest audited consolidated financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries who have responsibility for financial and
accounting matters and such other inquiries and procedures (including those
for a review of interim financial information as described in SAS No. 71)
as may be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus, for them to be
in conformity with generally accepted accounting principles;
(B) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q, incorporated by reference in the Prospectus, do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q
and the related published rules and regulations;
(C) any unaudited pro forma condensed consolidated financial
statements included in or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X and that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
II-1
<PAGE>
(D) as of a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock,
increase in long-term debt, or any decreases in consolidated net
current assets or shareholder's equity of the Company and its
subsidiaries, or any decreases in consolidated net sales or in the
total or per share amounts of income before extraordinary items or of
net income, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus, except in all instances for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraph (iii) above, they have carried out certain
specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including all documents incorporated by
reference therein), in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
II-2
<PAGE>
EXHIBIT 1(C)
DRAFT OF MAY 24, 1994
PLC CAPITAL L.L.C.
CUMULATIVE MONTHLY
INCOME PREFERRED SECURITIES
GUARANTEED BY
PROTECTIVE LIFE CORPORATION
__________
UNDERWRITING AGREEMENT
May ..., 1994
To the Representatives of the several
Underwriters to be named in the respective
Pricing Agreements hereinafter described.
Dear Sirs:
From time to time PLC Capital L.L.C., a limited liability company
formed under the laws of the State of Delaware (the "Company"), and
Protective Life Corporation, a Delaware corporation, as guarantor and
provider of certain backup undertakings (the "Guarantor" or "Protective
Life"), propose to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions
and deletions as the parties thereto may determine, and, subject to the
terms and conditions stated herein and therein, to issue and sell, in
the case of the Company, and to cause the Company to issue and sell, in
the case of the Guarantor, to the firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified
therein) certain of the Company's preferred limited liability company
interests designated Cumulative Monthly Income Preferred Securities (the
"Preferred Securities"), which Preferred Securities may be issued in one
or more series, guaranteed by the Guarantor pursuant to a Guarantee
Agreement relating to each such series in substantially the form filed
as an exhibit to the registration statement described herein (the
"Guarantee"), for the benefit of the holders from time to time of the
Preferred Securities to the extent set forth in the prospectus and
registration statement described herein (the Preferred Securities and
the Guarantee being referred to collectively as the "Securities"),
specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, the "Firm Securities"). If specified in such Pricing
Agreement, the Company may grant to the Underwriters the right to
purchase at their election an additional number of Preferred Securities,
specified in such Pricing Agreement as provided in Section 3 hereof (the
"Optional Securities"). The Firm Securities and the Optional Securities,
if any, which the Underwriters elect to purchase pursuant to Section 3
hereof are herein collectively called the "Designated Securities."
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating
thereto (to the extent not set forth in the registration statement or
prospectus with respect thereto) and in or pursuant to the written
action or actions (each, an "Action") taken by Protective Life, in its
capacity as the member of the Company that holds, directly or
indirectly, all of the outstanding common limited
<PAGE>
liability company interests (the "Common Securities") of the Company (in
such capacity, the "Managing Member"). The Company will loan the
proceeds of the offering of the Designated Securities and any capital
contributions in respect of Common Securities to Protective Life, such
loan to be evidenced by a series of subordinated debentures (the
"Debentures") to be issued by Protective Life pursuant to the
subordinated indenture, as it may be amended and supplemented from time
to time (as so amended or supplemented, the "Indenture") identified in
Schedule II to the Pricing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Designated Securities, for whom the
firms designated as representatives of the Underwriters of such
Designated Securities in the Pricing Agreement relating thereto will act
as representatives (the "Representatives"). The term "Representatives"
also refers to a single firm acting as sole representative of the
Underwriters and to Underwriters who act without any firm being
designated as their representative. This Underwriting Agreement shall
not be construed as an obligation of the Company to sell any of the
Preferred Securities or as an obligation of any of the Underwriters to
purchase any of the Preferred Securities. The obligation of the Company
to issue and sell any of the Preferred Securities and the obligation of
any of the Underwriters to purchase any of the Preferred Securities
shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall
specify the aggregate number of the Firm Securities, the maximum number
of Optional Securities, if any, the initial public offering price of
such Firm and Optional Securities or the manner of determining such
price, the purchase price to the Underwriters of such Designated
Securities, the amount of any compensation to be paid to the
Underwriters by the Guarantor for their services thereunder
("Underwriters' Compensation"), the names of the Underwriters of such
Designated Securities, the names of the Representatives of such
Underwriters, the number of such Designated Securities to be purchased
by each Underwriter and the commission, if any, payable to the
Underwriters with respect thereto and shall set forth the date, time and
manner of delivery of such Firm and Optional Securities, if any, and
payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations
of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. Each of the Company and the Guarantor jointly and severally
represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form S-3 (File No. 33-52831)
in respect of Debt Securities and Preferred Stock of the Guarantor
and the Securities (collectively, the "Registered Securities") has
been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated
by reference in the prospectus included therein, to the
Representatives for delivery to each of the other Underwriters,
have been declared effective by the Commission in such form; no
other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission; and no stop order
suspending the effectiveness of such registration
2
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statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration
statement at the time such part of the registration statement
became effective, but excluding any Forms T-1 and, if applicable,
including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be a part of such
registration statement at effectiveness, each as amended at the
time such part of the registration statement became effective,
being hereinafter called the "Registration Statement"; the
prospectus (including, if applicable, any prospectus supplement)
relating to the Registered Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed with the Commission after the date of
such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Guarantor filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions
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made in reliance upon and in conformity with information furnished
in writing to the Company or the Guarantor by an Underwriter of
Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus,
in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company or the Guarantor by an Underwriter of
Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such
Designated Securities;
(d) The Company has no subsidiaries. Since the respective
dates as of which information is given in the Registration
Statement and the Prospectus, there has not been (i) any change in
the limited liability company interests or long-term debt of the
Company or any material change in the capital stock or any
increase in long-term debt of the Guarantor or any of its
subsidiaries in excess of $9 million, (ii) any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations
of the Company or the Guarantor and its subsidiaries taken as a
whole or (iii) any reduction in the statutory capital or surplus
of the Guarantor's subsidiaries engaged in the business of
insurance (each an "Insurance Subsidiary," and collectively, the
"Insurance Subsidiaries") taken as a whole, in excess of $9
million, in each case otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company has been duly formed and is validly existing
as a limited liability company in good standing under the laws of
the State of Delaware, with all necessary limited liability
company power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business
under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction;
(f) Each of the Guarantor and Protective Life Insurance
Company ("Protective Life Insurance") has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws
4
<PAGE>
of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, or
is subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(g) Protective Life Insurance is duly organized and
licensed as an insurance company in its state of incorporation and
is duly licensed or authorized as an insurer in each other
jurisdiction where it is required to be so licensed or authorized
to conduct its business as described in the Prospectus, except for
any such jurisdictions in which the failure to be so licensed or
authorized would not have a material adverse effect on the
business, financial condition or results of operations of the
Guarantor and its subsidiaries, considered as a whole; and, except
as otherwise specifically described in the Prospectus, neither the
Guarantor nor Protective Life Insurance has received any
notification from any insurance regulatory authority to the effect
that any additional authorization, approval, order, consent,
license, certificate, permit, registration or qualification from
such insurance regulatory authority is needed to be obtained by
any of the Guarantor or Protective Life Insurance in any case
where it could be reasonably expected that the failure to obtain
any such additional authorization, approval, order, consent,
license, certificate, permit, registration or qualification would
have a material adverse effect on the business, financial position
or results of operations of the Guarantor and its subsidiaries,
considered as a whole;
(h) The Guarantor has an authorized capitalization as set
forth in the Prospectus, as amended or supplemented; all of the
issued shares of capital stock of the Guarantor have been duly and
validly authorized and issued, are fully paid and non-assessable
and conform in all material respects to the descriptions thereof
contained in the Prospectus; and all of the issued shares of
capital stock of Protective Life Insurance have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except for directors' qualifying shares) are owned directly
or indirectly by the Guarantor, free and clear of all liens,
encumbrances, equities or claims;
(i) The Amended and Restated Limited Liability Company
Agreement (the "L.L.C. Agreement") of the Company, which is in
substantially the form filed as an exhibit to the Registration
Statement, has been duly authorized by the Guarantor and
constitutes a valid and legally binding agreement of the Guarantor
and the wholly-owned subsidiary of the Guarantor which is a party
thereto enforceable against the Guarantor and such subsidiary by
the members of the Company that hold Preferred Securities (the
"Preferred Securityholders") in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles
(regardless of whether
5
<PAGE>
considered in a proceeding at law or in equity); the L.L.C.
Agreement will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented
with respect to the Designated Securities;
(j) The Guarantee has been duly authorized and, at the Time
of Delivery (as defined in Section 4 hereof) for such Designated
Securities, such Guarantee will constitute a valid and legally
binding obligation of the Guarantor, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether considered in a
proceeding at law or in equity); the Guarantee will conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented with respect to the Designated Securities;
(k) The Debentures have been duly authorized, and at the
Time of Delivery for such Designated Securities, such Debentures
will have been duly issued, executed, authenticated and delivered
and will constitute valid and legally binding obligations of the
Guarantor, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles
(regardless of whether considered in a proceeding at law or in
equity); the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement, has been duly
authorized by the Guarantor and, at the Time of Delivery for such
Designated Securities, the Indenture will be duly qualified under
the Trust Indenture Act and, assuming due authorization, execution
and delivery by the trustee under such Indenture (the "Trustee"),
the Indenture will constitute a valid and legally binding
instrument enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles
(regardless of whether considered in a proceeding at law or in
equity); and the Indenture conforms, and the Debentures will
conform in all material respects to the descriptions thereof
contained in the Prospectus as amended or supplemented with
respect to such Designated Securities;
(l) The Company has an authorized capitalization as set
forth in the Prospectus, as amended or supplemented; all of the
issued Common Securities of the Company have been duly authorized
and validly issued and are owned directly or indirectly by the
Guarantor, free and clear of all liens, encumbrances, equities or
claims; and the Company is not a party to or otherwise bound by
any agreement other than those described in the Prospectus;
(m) The Securities have been duly authorized, and, when the
terms of the Designated Securities have been established by an
Action or Actions taken by the Managing Member and issued and
delivered against payment therefor pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Securities
and, in the case of any Optional Securities, pursuant to
Over-allotment Options (as defined in Section 3 hereof) with
respect to such Designated Securities, such Designated Securities
will be duly and validly issued, fully paid and non-assessable
preferred limited liability company interests in the Company, as
to which the Preferred Securityholders, in their capacity as
members of the Company, will have no liability solely by reason of
being Preferred Securityholders in excess of their obligations to
make payments provided for in the L.L.C. Agreement and their share
of the Company's assets and undistributed profits (subject to any
obligation of a Preferred Securityholders to repay any funds
wrongfully distributed to it); and the Securities conform in all
material respects to the description thereof contained in the
Registration Statement and the Designated Securities will conform
in all material respects to the description thereof contained in
the Prospectus as amended or supplemented with respect to such
Designated Securities;
(n) The issue and sale of the Designated Securities and the
compliance by the Company and the Guarantor with all of the
provisions of this Agreement, any
6
<PAGE>
Pricing Agreement and each Over-allotment Option (as defined in
Section 3 hereof), if any, and the execution, delivery and
performance by the Company and the Guarantor of their respective
obligations under the Indenture, the Debentures and the Guarantee,
and the consummation of the transactions contemplated herein and
therein will not (1) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company,
the Guarantor or Protective Life Insurance is a party or by which
the Company, the Guarantor or Protective Life Insurance is bound
or to which any of the property or assets of the Company, the
Guarantor or Protective Life Insurance is subject, except, in all
such cases, for such conflicts, breaches, violations or defaults
as would not have a material adverse effect on the financial
condition or results of operations of the Guarantor and Protective
Life Insurance taken as a whole or would not affect the validity
of or otherwise have a material adverse effect on the issuance or
sale of the Designated Securities, (2) result in any violation (A)
of the provisions of the Certificate of Formation of the Company,
the L.L.C. Agreement or the Certificate of Incorporation or
By-laws of the Guarantor or Protective Life Insurance or (B) any
statute or any order, rule or regulation of any court or insurance
regulatory authority or other governmental agency or body having
jurisdiction over the Company, the Guarantor or any of the
Guarantor's subsidiaries or any of their properties; provided,
however that in the case of clause (B) of this paragraph 2(n),
this representation and warranty shall not extend to such
violations as would not have a material adverse effect on the
financial condition or results of operations of the Guarantor and
Protective Life Insurance taken as a whole or would not affect the
validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Securities; provided further,
that insofar as this representation and warranty relates to the
performance by the Company and the Guarantor of each of their
respective obligations under this Agreement, the Pricing Agreement
relating to the Designated Securities, the Indenture, the
Debentures and the Guarantee, such performance is subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or insurance regulatory
authority or other governmental agency or body having jurisdiction
over the Company, the Guarantor or Protective Life Insurance is
required for the issue and sale of the Securities or the
consummation by the Company or the Guarantor of the transactions
contemplated by this Agreement, any Pricing Agreement, the
Indenture, the Debentures, the Guarantee or any Over-allotment
Option, except such as have been, or will have been prior to each
Time of Delivery (as defined in Section 4 hereof), obtained under
the Act or the Trust Indenture Act or from the Tennessee Insurance
Commissioner and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws or insurance securities laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters and except those which, if not
obtained, will not have a material adverse effect on the financial
condition or results of operations of the Guarantor and Protective
Life Insurance taken as a whole or would not affect the validity
of or otherwise have a material adverse effect on the issuance or
sale of the Designated Securities;
(o) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending
to which the Company, the
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<PAGE>
Guarantor or any of its subsidiaries is a party or of which any
property of the Company, the Guarantor or any of its subsidiaries
is the subject, which could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
consolidated financial position, stockholders' equity (if
applicable), total surplus (if applicable) or results of
operations of the Company, the Guarantor and its subsidiaries
taken as a whole; and, to the best of the Guarantor's and the
Company's knowledge, as the case may be, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others; and
(p) The Company is not an "investment company" or a company
"controlled" by an investment company, as defined in the
Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the
release of the Firm Securities, the several Underwriters propose to
offer the Firm Securities for sale upon the terms and conditions set
forth in the Prospectus as amended or supplemented.
The Company may specify in the Pricing Agreement applicable to any
Designated Securities that the Company thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Securities set forth in such
Pricing Agreement, at the terms set forth in the Prospectus as amended
or supplemented, for the sole purpose of covering over-allotments in the
sale of the Firm Securities. Any such election to purchase Optional
Securities may be exercised only by written notice from the
Representatives to the Company and the Guarantor, given within a period
specified in the Pricing Agreement, setting forth the aggregate number
of Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery
(as defined in Section 4 hereof) or, unless the Representatives and the
Company otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice set
forth in such Pricing Agreement.
The number of Optional Securities to be added to the number of
Firm Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the number of Optional Securities
which the Company and the Guarantor have been advised by the Representa-
tives have been attributed to such Underwriter, provided that, if the
Company and the Guarantor have not been so advised, the number of
Optional Securities to be so added shall be, in each case, that
proportion of Optional Securities which the number of Firm Securities to
be purchased by such Underwriter under such Pricing Agreement bears to
the aggregate number of Firm Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of
Designated Securities to be purchased by all the Underwriters pursuant
to such Pricing Agreement shall be the aggregate number of Firm
Securities set forth in Schedule I to such Pricing Agreement plus the
aggregate number of the Optional Securities which the Underwriters elect
to purchase.
4. Unless otherwise specified in the applicable Pricing Agreement,
global certificates for the Firm Securities and Optional Securities to
be purchased by each Underwriter pursuant to such Pricing Agreement,
registered in the name "Cede & Co.," shall be delivered by or on behalf
of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks,
payable to the order of the Company or, if so requested by the Company,
by wire transfer to a bank account specified by the
8
<PAGE>
Company and described in Schedule II to such Pricing Agreement, in
the funds specified in such Pricing Agreement, (i) with respect to
the Firm Securities, all at the place and time and date specified
in such Pricing Agreement or at such other place and time and date
as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "First Time of
Delivery" and (ii) with respect to the Optional Securities, if
any, on the time and date specified by the Representatives in the
written notice given by the Representatives of the Underwriters'
election to purchase such Optional Securities, or at such other
time and date as the Representatives and the Company may agree
upon in writing, such time and date, if not the First Time of
Delivery, herein called the "Second Time of Delivery." Each such
time and date for delivery is herein called a "Time of Delivery."
As compensation to the Underwriters for their commitments to
purchase the Designated Securities, and in view of the fact that the
proceeds of the sale of the Securities will be loaned by the Company to
the Guarantor, the Guarantor hereby agrees to pay at each Time of
Delivery to the Representatives, for the accounts of the several
Underwriters, an amount per Security set forth in the Pricing Agreement
relating to the Designated Securities to be sold by the Company
thereunder, provided, however, that such compensation may, if so
specified in the Pricing Agreement, be a reduced amount per Security set
forth in such Pricing Agreement with respect to Designated Securities
sold to certain institutions thereunder, in which case the Underwriters
shall inform the Company, in writing, the business day prior to each
Time of Delivery, of the number of Designated Securities sold to such
institutions.
5. Each of the Company and the Guarantor, jointly and severally,
agrees with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form
approved by the Representatives (which approval shall not be
unreasonably withheld) and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and
delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such other time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended
or supplemented after the date of the Pricing Agreement relating
to such Securities and prior to any Time of Delivery for such
Securities which shall be reasonably disapproved by the
Representatives for such Securities promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement after any Time of Delivery for such
Securities and furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company or the Guarantor
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such
Securities, and during such same period to advise the
Representatives, promptly after the Company or the Guarantor
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed with the Commission, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of
the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of
9
<PAGE>
any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities
for offering and sale under the securities laws of such United
States jurisdictions as the Representatives may reasonably request
and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such Securities,
provided that in connection therewith neither the Company nor the
Guarantor shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any
jurisdiction and provided further that in connection therewith the
Company and the Guarantor shall not be required to qualify such
Designated Securities for offering and sale under the securities
laws of any such jurisdiction for a period in excess of nine
months after the initial time of issue of the Prospectus as
amended or supplemented relating to such Designated Securities;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if
the delivery of a prospectus is required at any time in connection
with the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act or the Exchange Act, to notify the Representatives
and upon their request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement
to the Prospectus which will correct such statement or omission or
effect such compliance, provided, however, that in case any
Underwriter is required under the Act to deliver a prospectus in
connection with the offering or sale of the Designated Securities
at any time more than nine months after the date of the Pricing
Agreement relating to the Designated Securities, the costs of such
preparation and furnishing of such amended or supplemented
Prospectus shall be borne by the Underwriters of such Designated
Securities;
(d) In the case of the Guarantor, to make generally
available to its security holders as soon as practicable, but in
any event not later than eighteen months after the effective date
of the Registration Statement (as defined in Rule 158(c)), an
earning statement of the Guarantor and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission relating thereunder
(including, at the option of the Guarantor, Rule 158);
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(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the earlier of (i) the date after the last Time of
Delivery for such Designated Securities on which the distribution
of the Designated Securities ceases, as determined by the
Representatives and (ii) the date which is 90 days after the last
Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any securities of
the Company or the Guarantor (other than pursuant to employee
stock option plans existing or on the conversion of convertible
securities outstanding on the date of such Pricing Agreement)
which are substantially similar to such Designated Securities, or
any securities convertible into or exchangeable for Designated
Securities or such substantially similar securities of either the
Company or the Guarantor, without the prior written consent of the
Representatives;
(f) To use its best efforts to list, subject to notice of
issuance, the Designated Securities on the New York Stock
Exchange; and
(g) To use its best efforts to list the Debentures, upon
exchange for Designated Securities, on the New York Stock
Exchange.
6. The Company and the Guarantor, jointly and severally, covenant
and agree with the several Underwriters that the Company and the
Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's and the Guarantor's counsel
and accountants in connection with the registration of the Securities
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary
Prospectus and, subject to the proviso of Section 5(c), the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of
producing and printing or duplicating any Agreement among Underwriters,
this Agreement, any Pricing Agreement, any Blue Sky and Legal Investment
Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof,
including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing
fees incident to any required reviews by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities;
(vi) any cost of preparing certificates for the Securities; (vii) the
cost and charges of any transfer agent or registrar or dividend
disbursing agent; (viii) the cost of qualifying the Securities with the
Depository Trust Company; (ix) the cost of listing the Securities on the
New York Stock Exchange; and (viii) all other costs and expenses
incident to the performance of the Company's and the Guarantor's
obligations hereunder and under any Over-allotment Options which are not
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale
of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated
Securities shall be subject, in the discretion of the Representatives,
to the condition that all representations and warranties and other
statements of the Company and the Guarantor in or incorporated by
reference in the Pricing Agreement relating to such Designated
Securities are, at and as of each Time of Delivery
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for such Designated Securities, true and correct, the condition that the
Company and the Guarantor shall have performed all of their respective
obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus as amended or supplemented in relation to
such Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no stop
order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, or other counsel for the
Underwriters, shall have furnished to the Representatives such
opinion or opinions, dated each Time of Delivery for such
Designated Securities, with respect to the formation of the
Company and the incorporation of the Guarantor, the validity of
the Guarantee and the Designated Securities and the Debentures
being delivered at such Time of Delivery, the Indenture, the
Registration Statement, the Prospectus as amended or supplemented
and other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters; provided, that in rendering such opinion, such
counsel may rely upon the opinion of Richards, Layton &
Finger, P.A. as to all matters of Delaware law relating to the
Company, the Preferred Securities and the L.L.C. Agreement;
(c) Deborah J. Long, Esq., Senior Vice President and General
Counsel of the Guarantor, or any successor having substantially
equivalent responsibilities with the Guarantor, shall have
furnished to the Representatives such counsel's written opinion,
dated each Time of Delivery for such Designated Securities,
respectively, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each of the Guarantor and Protective Life
Insurance has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so
as to require such qualification, or is subject to no
material liability or disability by reason of the failure to
be so qualified in any such jurisdiction;
(ii) The Guarantor has an authorized capitalization
as set forth in the Prospectus as amended or supplemented,
and all of the issued shares of capital stock of the
Guarantor have been duly and validly authorized and issued,
are fully paid and non-assessable and conform in all
material respects to the description thereof in the
Prospectus as amended or supplemented; and all of the issued
shares of capital stock of Protective Life Insurance have
been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors' qualifying
shares) are owned
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<PAGE>
directly or indirectly by the Guarantor, free and clear of any
perfected security interests and, to such counsel's best
knowledge, any other security interests, claims, liens or
encumbrances;
(iii) The Company has an authorized capitalization
as set forth in the Prospectus, as amended or supplemented;
all of the issued Common Securities of the Company have been
duly authorized and validly issued and are owned directly or
indirectly by the Guarantor, free and clear of any perfected
security interests and, to such counsel's best knowledge,
any other security interests, claims, liens or encumbrances;
and the Company is not a party to or otherwise bound by any
agreement other than those described in the Prospectus;
(iv) The issue and sale of the Designated
Securities being delivered at such Time of Delivery and the
compliance by the Company and the Guarantor with all of the
provisions of this Agreement, any Pricing Agreement and each
Over-allotment Option, if any, and the execution, delivery
and performance by the Guarantor of the Indenture, the
Debentures and the Guarantee and the performance by the
Guarantor and the Company of their respective obligations
hereunder and thereunder and the consummation of the
transactions herein and therein contemplated will not (i)
conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which
the Guarantor or Protective Life Insurance is a party or by
which the Guarantor or Protective Life Insurance is bound or
to which any of the property or assets of the Guarantor or
Protective Life Insurance is subject, except, in all such
cases, for such conflicts, breaches, violations or defaults
as would not have a material adverse effect on the financial
condition or results of operations of the Guarantor and
Protective Life Insurance taken as a whole or would not
affect the validity of or otherwise have a material adverse
effect on the issuance or sale of the Designated Securities,
or (ii) result in any violation of the provisions of (A) the
Certificate of Incorporation or By-Laws of the Guarantor or
Protective Life Insurance or (B) any statute known to such
counsel to be applicable to the Company, the Guarantor or
Protective Life Insurance or any of their respective
properties or any order, rule or regulation known to such
counsel of any court or insurance regulatory authority or
other governmental agency or body having jurisdiction over
the Guarantor or Protective Life Insurance or any of their
respective properties, except, with respect to clause (B) of
this paragraph (iv), such violations as would not have a
material adverse effect on the financial condition or
results of operations of the Guarantor and Protective Life
Insurance taken as a whole or would not affect the validity
of or otherwise have a material adverse effect on the
issuance or sale of the Designated Securities; and except
that for purposes of this paragraph (iv) such counsel need
not express any opinion as to any federal or state
securities laws or Blue Sky or insurance securities laws;
provided further, that insofar as performance by the
Guarantor of its obligations under the Indenture, the
Debentures, the Guarantee Agreement, this Agreement and the
Pricing Agreement relating to the Designated Securities is
concerned, such counsel need not express any opinion as to
bankruptcy, insolvency, reorganization, moratorium and
similar laws relating to or affecting creditors' rights
generally and as to general equity principles;
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<PAGE>
(v) To the best of such counsel's knowledge, no
consent, approval, authorization, order, registration or
qualification of or with any court or insurance regulatory
authority or other governmental agency or body having
jurisdiction over the Guarantor or any of its subsidiaries
is required for the issue and sale of the Designated
Securities being delivered at such Time of Delivery or the
consummation by the Company or the Guarantor of the
transactions contemplated by this Agreement, any Pricing
Agreement, the Indenture, the Debentures, the Guarantee or
any Over-allotment Option, except such as have been, or will
have been prior to each Time of Delivery, obtained under the
Act or the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as
may be required under state securities or Blue Sky laws or
insurance securities laws in connection with the purchase
and distribution of the Designated Securities by the
Underwriters, and except those which, if not obtained, would
not have a material adverse effect on the financial
condition or results of operations of the Guarantor and its
subsidiaries taken as a whole;
(vi) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending to which
the Company, the Guarantor or any of its subsidiaries is a
party or of which any property of the Company, the Guarantor
or any of its subsidiaries is the subject of a character
required under the Federal securities laws to be disclosed
in the Registration Statement or Prospectus which are not
adequately disclosed in the Registration Statement or
Prospectus; and
(vii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related notes, the financial
statement schedules and other financial and statistical data
included therein, as to which such counsel need express no
opinion), when they become effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder.
In rendering the opinion required by subsection (c) of this
Section, (i) such counsel may state that she is admitted to the
Bar of the State of Alabama only, and (ii) such counsel may rely
(A) as to any matter to which you consent (which consent shall not
be unreasonably withheld), to the extent specified in such
opinion, upon the opinions (copies of which shall have been
provided to the Representatives) of other counsel in good standing
whom such counsel believes to be reliable, provided that such
counsel shall state that she believes that both she and the
Representatives are justified in relying on such opinions and (B)
as to matters of fact, upon certificates of officers and
representatives of the Guarantor and of public officials (copies
of which shall have been provided to the Representatives),
provided that such counsel shall state that she believes that both
she and the Representatives are justified in relying upon such
certificates.
Such counsel shall also have stated that, while she has not
herself checked the accuracy or completeness of or otherwise
verified, and is not passing upon and assumes no responsibility
for the accuracy or completeness of, the statements contained in
the Registration Statement or the Prospectus, in the course of her
14
<PAGE>
review and discussion of the contents of the Registration
Statement and Prospectus and any amendment or supplement thereto
with certain officers and employees of the Guarantor and its
independent accountants, but without independent check or
verification, no facts have come to her attention that would cause
her to believe that the Registration Statement or the Prospectus,
as amended or supplemented, as of the date of the Pricing
Agreement with respect to the Designated Securities and the Time
of Delivery for such Designated Securities (other than the
financial statements and related notes, the financial statement
schedules, other financial and statistical data included
therein and the Statement of Eligibility of the Trustee
on Form T-1 under the Trust Indenture Act as to which she need
express no opinion) contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(d) Debevoise & Plimpton, or other counsel for the Company
and the Guarantor satisfactory to the Representatives, shall have
furnished to the Representatives their written opinion, dated each
Time of Delivery for such Designated Securities, respectively, in
form and substance satisfactory to the Representatives, to the
effect that:
(i) The Company has been duly formed and is
validly existing in good standing as a limited liability
company under the laws of the State of Delaware; under the
L.L.C. Agreement and the Delaware Limited Liability Company
Act (6 Del. C. Section 18-101, et seq.), the Company has
all necessary limited liability company power and authority
to own its properties and conduct its business, all as
described in the Prospectus;
(ii) The Common Securities of the Company issued to
the Guarantor and Protective LLC Holding, Co., a Delaware
corporation and wholly-owned subsidiary of the Guarantor
("Protective Holding"), have been duly authorized and are
validly issued;
(iii) The Designated Securities being delivered at
such Time of Delivery have been duly authorized and validly
issued and, subject to the qualifications set forth herein,
are fully paid and non-assessable preferred limited
liability company interests in the Company, as to which the
Preferred Securityholders, in their capacities as such, will
have no liability solely by reason of being Preferred
Securityholders in excess of their obligations to make
payments provided for in the L.L.C. Agreement and their
share of the Company's assets and undistributed profits
(subject to the obligation of a Preferred Securityholder to
repay any funds wrongfully distributed to it); and the
Securities conform in all material respects to the
description thereof contained in the Registration Statement
and the Designated Securities conform in all material
respects to the description thereof contained in the
Prospectus as amended or supplemented with respect to such
Designated Securities;
(iv) The L.L.C. Agreement constitutes a valid and
legally binding agreement of the Guarantor and Protective
Holding enforceable against the Guarantor and Protective
Holding by the Preferred Securityholders in accordance with
its terms, subject to (A) bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws
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<PAGE>
relating to or affecting creditors' rights generally (B)
general equity principles (regardless of whether considered
in a proceeding at law or in equity) and (3) applicable laws
relating to fiduciary duties; and the L.L.C. Agreement
conforms in all material respects to the description thereof
in the Prospectus, as amended or supplemented with respect
to such Designated Securities;
(v) The Guarantee has been duly authorized,
executed and delivered by the Guarantor and constitutes a
valid and legally binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and to
general equity principles (regardless of whether considered
in a proceeding at law or in equity); and the Guarantee
conforms in all material respects to the description thereof
in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(vi) The Debentures have been duly authorized,
issued, executed, authenticated and delivered and constitute
valid and legally binding obligations of the Guarantor,
enforceable against the Guarantor in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and to
general equity principles (regardless of whether considered
in a proceeding at law or in equity); and the Debentures
conform in all material respects to the description thereof
contained in the Prospectus as amended or supplemented with
respect to such Designated Securities;
(vii) The Indenture has been duly authorized,
executed and delivered by the Guarantor and, assuming due
authorization, execution and delivery by the Trustee, the
Indenture constitutes a valid and legally binding instrument
enforceable against the Guarantor in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws
relating to or affecting creditors' rights generally and to
general equity principles (regardless of whether considered
in a proceeding at law or in equity); the Indenture has been
duly qualified under the Trust Indenture Act; and the
Indenture conforms in all material respects to the
description thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities;
(viii) This Agreement and the Pricing Agreement with
respect to the Designated Securities being delivered at such
Time of Delivery have been duly authorized, executed and
delivered by each of the Company and the Guarantor;
(ix) The issue and sale of the Designated
Securities being delivered at such Time of Delivery and the
compliance by the Company with all of the provisions of this
Agreement, any Pricing Agreement and each Over-allotment
Option, if any, and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a violation of the provisions of the Certificate
of Formation of the Company or the L.L.C. Agreement;
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<PAGE>
(x) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Company or the Guarantor
prior to such Time of Delivery (other than the financial
statements and related notes, the financial statement
schedules and other financial and statistical data included
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and
the rules and regulation thereunder;
(xi) The Company is not an "investment company" or
a company "controlled" by an investment company, as defined
in the Investment Company Act of 1940, as amended, and the
rules and regulations thereunder;
(xii) The statements contained in the Prospectus
under the captions "Description of Preferred Securities of
PLC Capital", "Description of Certain Contractual Back-Up
Obligations of Protective Life", "Description of Debt
Securities of Protective Life" and the corresponding
sections and any section describing tax matters in any
prospectus supplement relating to the Designated Securities
being delivered at such Time of Delivery, insofar as such
statements constitute summaries of certain provisions of the
documents or U.S. tax laws referred to therein, fairly
summarize the material provisions of such documents or U.S.
tax laws; and
(xiii) Such counsel has reviewed its opinion on
matters of U.S. tax law set forth in any prospectus
supplement relating to the Designated Securities being
delivered at such Time of Delivery and confirms such opinion
to the Representatives.
In rendering the foregoing opinion, Debevoise & Plimpton may
state that they express no opinion as to the laws of any
jurisdiction other than the Federal laws of the United States, the
laws of the State of New York and each of the General Corporation
Law and the Limited Liability Company Act of the State of
Delaware. In rendering the foregoing opinion, Debevoise &
Plimpton may also state that they have relied, as to matters of
Delaware law, on the opinion of Richards, Layton & Finger, P.A.
and the opinion of Debevoise & Plimpton may incorporate all of the
assumptions and qualifications set forth in the opinion of
Richards, Layton & Finger, P.A.
Debevoise & Plimpton shall also have stated that, while they
have not themselves checked the accuracy or completeness of or
otherwise verified, and are not passing upon and assume no
responsibility for the accuracy or completeness of, the statements
contained in the Registration Statement or the Prospectus, except
to the limited extent stated in paragraphs (iii), (iv), (v), (vi),
(vii) and (xii) above, in the course of their review and
discussion of the contents of the Registration Statement and the
Prospectus with certain officers and employees of the Guarantor
and its independent accountants, but without independent check or
verification, no facts have come to the attention of such counsel
that would cause such counsel to believe that the Registration
Statement or the Prospectus, as amended or supplemented, as of the
date of the Pricing Agreement with respect to the Designated
Securities and the Time of Delivery for such Designated Securities
(other than the financial statements and related notes, the
financial statement schedules and other financial and statistical
data included therein and except for the
17
<PAGE>
Statement of Eligibility of the Trustee on Form T-1 under the
Trust Indenture Act, as to which such counsel need express no
opinion) contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(e) Richards, Layton & Finger, P.A., special Delaware
counsel for the Company, shall have furnished to you their written
opinion, dated each Time of Delivery, in form and substance
satisfactory to the Representatives, with respect to the formation
of the Company, the validity of the Designated Securities, the
L.L.C. Agreement, statements of Delaware law contained in the
Prospectus as amended or supplemented and other related matters as
the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(f) On the date of the Pricing Agreement for such Designated
Securities and at each Time of Delivery for such Designated
Securities, the independent accountants of the Guarantor and the
Company who have certified the financial statements of the
Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to
the Representatives a letter, dated the date of such Pricing
Agreement, and a letter dated such Time of Delivery, respectively,
to the effect set forth in Annex II hereto, and with respect to
such letter dated such Time of Delivery, as to such other matters
as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(g) Since the respective dates as of which information is
given in the Prospectus as amended or supplemented there shall not
have been any change in the limited liability company interests or
long-term debt of the Company or any change in the capital stock
or any increase in the long-term debt of the Guarantor or any of
its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity (if
applicable), total surplus (if applicable) or results of
operations of the Company or the Guarantor and its subsidiaries
(in the case of the Insurance Subsidiaries, on either a statutory
or GAAP basis), in each case otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described above, is in the
judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the Prospectus as
amended or supplemented;
(h) On or after the date of the Pricing Agreement relating
to the Designated Securities (i) no downgrading shall have
occurred in any rating of the Guarantor or Protective Life
Insurance or the rating accorded the Preferred Securities or the
Guarantor's debt securities or preferred stock (including the
Guarantee or any other back-up undertakings in respect of the
Preferred Securities) by Moody's Investors Service, Inc., Standard
& Poor's Corporation, A.M. Best Company, Inc. or Duff & Phelps
Inc. and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, any such rating;
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<PAGE>
(i) On or after the date of the Pricing Agreement relating
to the Designated Securities there shall not have occurred any of
the following: (i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange; (ii) a
general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or
(iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a
national emergency or war, if the effect of any such event
specified in this Clause (iii) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Firm Securities or
Optional Securities or both on the terms and in the manner
contemplated by the Prospectus as amended or supplemented;
(j) The Designated Securities shall have been duly listed,
subject to notice of issuance, on the New York Stock Exchange; and
(k) The Guarantor shall have furnished or caused to be
furnished to the Representatives at each Time of Delivery for the
Designated Securities certificates of officers of the Guarantor
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company and the Guarantor
herein at and as of such Time of Delivery, as to the performance
by the Company and the Guarantor of all of their obligations
hereunder to be performed at or prior to such Time of Delivery, as
to matters set forth in subsections (a) and (g) of this Section
and as to such other matters as the Representatives may reasonably
request.
8. (a) The Company and the Guarantor will indemnify and hold
harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (i) in the case of the Registration Statement, not
misleading and (ii) in the case of the Prospectus, as amended or
supplemented, or any other such prospectus, in light of the
circumstances in which they were made, not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that neither the Company nor the Guarantor shall be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities, or any such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by any Underwriter
of Designated Securities through the Representatives expressly for use
therein and provided, further, that neither the Company nor the
Guarantor shall be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any Preliminary
Prospectus or any preliminary prospectus supplement to the extent that
any such loss, claim, damage or liability of such Underwriter results
from the fact such Underwriter sold Designated Securities to a person as
to whom it shall be established that there was not sent or given, at or
prior to the written confirmation
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<PAGE>
of such sale, a copy of the Prospectus (excluding documents incorporated
by reference) in any case where such delivery is required by the
Act if such Underwriter failed to make reasonable efforts generally
consistent with the then prevailing industry practice to effect such
delivery and the Company or the Guarantor has previously furnished copies
thereof in sufficient quantities to such Underwriter (or to the Representatives)
and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus or any preliminary prospectus supplement which
was corrected in the Prospectus (excluding documents incorporated by
reference) (or the Prospectus as amended or supplemented (excluding
documents incorporated by reference)).
(b) Each Underwriter will indemnify and hold harmless the Company
and the Guarantor against any losses, claims, damages or liabilities to
which the Company or the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the case of the
Prospectus, as amended or supplemented, or any such prospectus, in light
of the circumstances in which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities, or any such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by such
Underwriter through the Representatives expressly for use therein; and
will reimburse the Company or the Guarantor for any legal or other
expenses reasonably incurred by the Company or the Guarantor in
connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable
to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. In no event,
shall any indemnifying party be liable for the fees and expenses of more
than one counsel (in addition to local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but related actions in the same jurisdiction arising out of the
same general allegations or circumstances.
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(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantor on the one hand and the Underwriters of
the Designated Securities on the other from the offering of the
Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Guarantor on the one hand and
the Underwriters of the Designated Securities on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor on the one hand and such Underwriters
on the other shall be deemed to be in the same proportion as the total
net proceeds from such offering (before deducting expenses) received by
the Company and the Guarantor bear to the total underwriting discounts
and commissions received by such Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Guarantor on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company, the Guarantor and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company and the Guarantor under this
Section 8 shall be joint and several and shall be in addition to any
liability which the Company and the Guarantor may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same
21
<PAGE>
terms and conditions, to each officer and director of the Company or
the Guarantor and to each person, if any, who controls the Company or the
Guarantor within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Securities or Optional Securities which it has agreed
to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Securities
on the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the
purchase of such Firm Securities or Optional Securities, as the case may
be, then the Company and the Guarantor shall be entitled to a further
period of thirty-six hours within which to procure another party or
other parties reasonably satisfactory to the Representatives to purchase
such Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company and the
Guarantor that they have so arranged for the purchase of such
Securities, or either the Company or the Guarantor notifies the
Representatives that it has so arranged for the purchase of such
Securities, the Representatives, the Company or the Guarantor shall have
the right to postpone a Time of Delivery for such Securities for a
period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company and the Guarantor agree to file promptly
any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement with
respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Firm Securities or Optional Securities, as the case may be, of a
defaulting Underwriter or Underwriters by the Representatives, the
Company and the Guarantor as provided in subsection (a) above, the
aggregate number of such Designated Securities which remains unpurchased
does not exceed one-eleventh of the aggregate number of the Firm
Securities or Optional Securities, as the case may be, to be purchased
at the respective Time of Delivery, then the Company and the Guarantor
shall have the right to require each non-defaulting Underwriter to
purchase the number of Firm Securities or Optional Securities, as the
case may be, which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Firm Securities or Optional Securities, as the
case may be, which such Underwriter agreed to purchase under such
Pricing Agreement) of the Firm Securities or Optional Securities, as the
case may be, of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Firm Securities or Optional Securities, as the case may be, of a
defaulting Underwriter or Underwriters by the Representatives, the
Company and the Guarantor as provided in subsection (a) above, the
aggregate number of Firm Securities or Optional Securities, as the case
may be, which remains unpurchased exceeds one-eleventh of the aggregate
number of the Firm Securities or Optional Securities, as the case may
be, to be purchased at the respective Time of Delivery, as referred to
in subsection (b) above, or if the Company or the Guarantor shall not
exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Firm Securities or Optional
Securities, as the case may be, of a
22
<PAGE>
defaulting Underwriter or Underwriters, then the Pricing Agreement
relating to such Firm Securities or the Over-allotment Option relating to
such Optional Securities, as the case may be, shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Guarantor, except for the expenses to be borne by the Company,
the Guarantor and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for
its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Guarantor and the
several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or the Company
or the Guarantor, or any officer or director or controlling person of
the Company or the Guarantor, and shall survive delivery of and payment
for the Designated Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, the Company and the Guarantor
shall not then be under any liability to any Underwriter with respect to
the Firm Securities or Optional Securities with respect to which such
Pricing Agreement shall have been terminated except as provided in
Section 6 and Section 8 hereof; but, if for any other reason, Designated
Securities are not delivered by or on behalf of the Company and the
Guarantor as provided herein, the Company and the Guarantor, jointly and
severally, will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the
Representatives, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Designated Securities, but the
Company and the Guarantor shall then be under no further liability to
any Underwriter with respect to such Designated Securities except as
provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of
such Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by such of
the Representatives, if any, as may be designated for such purpose in
the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to the address of the
Representatives as set forth in the Pricing Agreement; and if to the
Company or the Guarantor shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Guarantor set forth in the
Registration Statement, Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire,
or telex constituting such Questionnaire, which address will be supplied
to the Company by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company,
the Guarantor and, to the extent provided in Section 8 and Section 10
hereof, the officers and directors of the Company and
23
<PAGE>
the Guarantor and each person who controls the Company or the Guarantor
or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any
such Pricing Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all
such respective counterparts shall together constitute one and the same
instrument.
Very truly yours,
PLC CAPITAL L.L.C.
By: Protective Life Corporation,
as Managing Member
By: ____________________________
Name:
Title:
PROTECTIVE LIFE CORPORATION
By: ____________________________
Name:
Title:
24
<PAGE>
ANNEX I
PRICING AGREEMENT
[Goldman, Sachs & Co., or other Lead Representative]
[Names of Co-Representatives, if any]
As Representatives of the several Underwriters
named in Schedule I hereto,
[c/o Goldman, Sachs & Co.,]
85 Broad Street,
New York, New York 10004
............. 19..
Dear Sirs:
PLC Capital L.L.C., a limited liability company formed under the
laws of the State of Delaware (the "Company"), and Protective Life
Corporation, a Delaware corporation, as guarantor and provider of
certain back-up undertakings (the "Guarantor"), propose subject to the
terms and conditions stated herein and in the Underwriting Agreement,
dated ............., 1994 (the "Underwriting Agreement"), that the
Company shall issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities," [consisting of Firm Securities and
any Optional Securities the Underwriters may elect to purchase]). Each
of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which
refers to the Prospectus in Section 2 of the Underwriting Agreement
shall be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject
of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the
Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such
Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities,
in the form heretofore delivered to you is now proposed to be filed with
the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the
Company agrees to, and the
I-1
<PAGE>
Guarantor agrees to cause the Company to, issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto [and, (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase
Optional Securities, as provided below, the Company agrees to, and the
Guarantor agrees to cause the Company to, issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at the purchase price to the
Underwriters set out in Schedule II hereto that portion of the number of
Optional Securities as to which such election shall have been
exercised].
[The Company hereby grants to each of the Underwriters the right
to purchase at their election up to the number of Optional Securities
set forth opposite the name of such Underwriter in Schedule I hereto on
the terms referred to in the paragraph above for the sole purpose of
covering overallotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised by written
notice from the Representatives to the Company and the Guarantor given
within a period of 30 calendar days after the date of this Pricing
Agreement, setting forth the aggregate number of Optional Securities to
be purchased and the date on which such Optional Securities are to be
delivered, as determined by the Representatives but in no event earlier
than the First Time of Delivery or, unless the Representatives and the
Company and the Guarantor otherwise agree in writing, no earlier than
two or later than ten business days after the date of such notice.]
If the foregoing is in accordance with your understanding, please
sign and return to us ten counterparts hereof, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company and the
Guarantor. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the
I-2
<PAGE>
form of which shall be submitted to the Company and the Guarantor for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
PLC CAPITAL L.L.C.
By: Protective Life Corporation,
as Managing Member
By: ____________________________
Name:
Title:
PROTECTIVE LIFE CORPORATION
By: ____________________________
Name:
Title:
Accepted as of the date hereof:
[Goldman, Sachs & Co. or other
Lead Representative]
[Co-Representatives, if any]
By:__________________________________
[(Goldman, Sachs & Co.)]
[Name(s) of Co-Representative
Corporation(s)]
By: ____________________________
Name:
Title:
_________________________________
[Name(s) of Co-Representative
Partnership(s)]
On behalf of each of the Underwriters
I-3
<PAGE>
SCHEDULE I
MAXIMUM NUMBER
NUMBER OF OF OPTIONAL
FIRM SECURITIES SECURITIES WHICH
UNDERWRITER TO BE PURCHASED MAY BE PURCHASED
----------- --------------- ----------------
[Goldman, Sachs & Co. or other Lead
Representative]. . . . . . . . . . .
[Names of Co-Representative(s)] . . . .
[Names of other Underwriters] . . . . .
----------- ----------
Total. . . . . . . . . . . .
----------- ----------
----------- ----------
I-4
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
......% Cumulative Monthly Income Preferred Securities, Series
...., (liquidation preference $...... per Series .... Preferred
Security)
DATE OF ACTION OF THE MANAGING MEMBER ESTABLISHING THE DESIGNATED SECURITIES:
.........., 19..
NUMBER OF DESIGNATED SECURITIES:
Number of Firm Securities:
Maximum Number of Optional Securities:
INITIAL OFFERING PRICE TO PUBLIC:
$....... per security
UNDERWRITERS' COMPENSATION:
$....... per security
[(except that such compensation shall be $....... per security
sold to [certain institutions])]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[[New York] Clearing House Funds]
[Immediately Available Funds]
LIQUIDATION PREFERENCE:
$....... per security
DIVIDEND RATE:
.....% per annum per security
DIVIDEND PAYMENT DATES:
[The last day of each calendar month, commencing .........., 19..]
I-5
<PAGE>
DIVIDEND RIGHTS:
As described in the draft prospectus supplement attached hereto.
VOTING RIGHTS:
As described in the draft prospectus supplement attached hereto.
LIQUIDATION RIGHTS:
As described in the draft prospectus supplement attached hereto.
REDEMPTION AND EXCHANGE PROVISIONS:
The Designated Securities may be redeemed, in whole or in part, at
the option of the Company on or after ............, .... at
$.... per security, plus accrued and unpaid dividends to the date
fixed for redemption (the "Redemption Price").
Other redemption provisions, as described in the draft prospectus
supplement attached hereto.
SINKING FUND PROVISIONS:
[None]
GUARANTEE:
Guarantee Agreement, dated as of ......., 1994, of Protective Life
Corporation
TITLE OF DEBENTURES ISSUED BY PROTECTIVE LIFE CORPORATION IN CONNECTION
WITH THE ISSUANCE OF THE DESIGNATED SECURITIES:
Series __ Subordinated Debentures due __________ (the
"Debentures")
INDENTURE RELATING TO THE DEBENTURES:
Subordinated Indenture, dated as of ___, 1994, between Protective
Life Corporation and AmSouth Bank, N.A., as Trustee
[FIRST] TIME OF DELIVERY:
..........., 19..
CLOSING LOCATION:
I-6
<PAGE>
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
* A description of particular tax, accounting or other unusual
features (including any event risk provisions) of the Designated
Securities should be set forth, or referenced to an ATTACHED and
ACCOMPANYING description, if necessary to ensure agreement as to the
terms of the Securities to be purchased and sold. Such a description
might appropriately be in the form in which such features will be
described in the Prospectus Supplement for the offering.
I-7
<PAGE>
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect
that:
(i) They are independent certified public accountants with
respect to the Guarantor and its subsidiaries within the meaning
of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the consolidated financial statements
and financial statement schedules (and, if applicable, prospective
financial statements and/or pro forma financial information)
audited by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(iii) On the basis of limited procedures, not constituting an
audit conducted in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited consolidated
financial statements and other information referred to below, a
reading of the latest available interim financial statements of
the Guarantor and its subsidiaries, inspection of the minute books
of the Guarantor and its subsidiaries since the date of the latest
audited consolidated financial statements included or incorporated
by reference in the Prospectus, inquiries of officials of the
Guarantor and its subsidiaries who have responsibility for
financial and accounting matters and such other inquiries and
procedures (including those for a review of interim financial
information as described in SAS No. 71) as may be specified in
such letter, nothing came to their attention that caused them to
believe that:
(A) any material modifications should be made to the
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included or incorporated by reference in the
Guarantor's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity
with generally accepted accounting principles;
(B) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by
reference in the Guarantor's Quarterly Reports on Form 10-Q,
incorporated by reference in the Prospectus, do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to
Form 10-Q and the related published rules and regulations;
(C) any unaudited pro forma condensed consolidated
financial statements included in or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X and that the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
II-1
<PAGE>
(D) as of a specified date not more than five days
prior to the date of such letter, there was any change in
the capital stock, increase in long-term debt, or any
decreases in consolidated net current assets or
shareholder's equity of the Guarantor and its subsidiaries,
or any decreases in consolidated net sales or in the total
or per share amounts of income before extraordinary items or
of net income, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated
by reference in the Prospectus, except in all instances for
changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(iv) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries
and other procedures referred to in paragraph (iii) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are
derived from the general accounting records of the Guarantor and
its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference) or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by
the Representatives or in documents incorporated by reference in
the Prospectus specified by the Representatives, and have compared
certain of such amounts, percentages and financial information
with the accounting records of the Guarantor and its subsidiaries
and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the
date of the letter delivered on the date of the Pricing Agreement for
purposes of such letter and to the Prospectus as amended or supplemented
(including all documents incorporated by reference therein), in relation
to the applicable Designated Securities for purposes of the letter
delivered at the Time of Delivery for such Designated Securities.
II-2
<PAGE>
- - - -------------------------------------------------------------------------------
- - - -------------------------------------------------------------------------------
PLC CAPITAL L.L.C.
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of May 20, 1994
- - - -------------------------------------------------------------------------------
- - - -------------------------------------------------------------------------------
<PAGE>
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
TABLE OF CONTENTS
PAGE
----
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I--Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE Il--The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.1 Formation; Continuation . . . . . . . . . . . . . . . . 5
Section 2.2 Company Name . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.3 The Delaware Certificate, Etc. . . . . . . . . . . . . . 6
Section 2.4 Registered Office and Registered Agent . . . . . . . . . 6
Section 2.5 Principal Office . . . . . . . . . . . . . . . . . . . . 6
Section 2.6 Term of Company . . . . . . . . . . . . . . . . . . . . 6
Section 2.7 Purposes . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.8 Powers . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.9 Merger or Consolidation . . . . . . . . . . . . . . . . 8
Section 2.10 Treatment as Partnership . . . . . . . . . . . . . . . . 8
ARTICLE III--Members; Capitalization . . . . . . . . . . . . . . . . . . . . 8
Section 3.1 Admission of Members . . . . . . . . . . . . . . . . . . 8
Section 3.2 Cessation of Membership . . . . . . . . . . . . . . . . 9
Section 3.3 Common Interests . . . . . . . . . . . . . . . . . . . . 9
Section 3.4 Preferred Securities . . . . . . . . . . . . . . . . . . 9
Section 3.5 Capital Accounts . . . . . . . . . . . . . . . . . . . . 12
Section 3.6 Transfers of Capital Accounts. . . . . . . . . . . . . . .12
Section 3.7 Obligation to Lend Funds or Make Additional Capital
Contributions. . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV--Distributions . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.1 Periodic Distributions . . . . . . . . . . . . . . . . . 13
Section 4.2 Restricted Distributions . . . . . . . . . . . . . . . . 14
Section 4.3 Withholding . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V--Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.1 Allocation of Net Profits and Net Losses . . . . . . . . 14
Section 5.2 Tax Allocations . . . . . . . . . . . . . . . . . . . . 14
<PAGE>
PAGE
----
ARTICLE VI--Rights and Obligations of Members . . . . . . . . . . . . . . . 15
Section 6.1 Limited Liability of Preferred Securities Holders . . . 15
Section 6.2 Liability of Common Interest Holders . . . . . . . . . . 15
Section 6.3 Other Business, Etc. . . . . . . . . . . . . . . . . . . 16
Section 6.4 Exculpation and Indemnification. . . . . . . . . . . . . 16
Section 6.5 Management and Control . . . . . . . . . . . . . . . . . 18
Section 6.6 Meetings of Members. . . . . . . . . . . . . . . . . . . 18
ARTICLE VII--Transfers of Interests, Etc.. . . . . . . . . . . . . . . . . . 19
Section 7.1 Transfers of Interests . . . . . . . . . . . . . . . . . 19
Section 7.2 Registration and Registration of Transfer of Preferred
Securities . . . . . . . . . . . . . . . . . . . . . . . 20
Section 7.3 Persons Deemed Holders of Preferred Securities . . . . . 20
Section 7.4 Global Preferred Securities. . . . . . . . . . . . . . . 20
Section 7.5 Certificated Preferred Securities. . . . . . . . . . . . 21
Section 7.6 Replacement Preferred Securities . . . . . . . . . . . . 21
ARTICLE VIII--Books; Accounting; Tax Elections;
Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 8.1 Books and Records. . . . . . . . . . . . . . . . . . . . 21
Section 8.2 Filings of Returns and Other Writings; Tax Matters Partner;
Tax Elections. . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IX--Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 9.1 Events of Dissolution. . . . . . . . . . . . . . . . . . 23
Section 9.2 Proceeds of Liquidation. . . . . . . . . . . . . . . . . 24
Section 9.3 Application of Assets. . . . . . . . . . . . . . . . . . 24
Section 9.4 Gains or Losses in Process of Liquidation. . . . . . . . 25
Section 9.5 Common Interest Holder Restoration of Negative Account
Balance. . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE X--Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.1 Amendment to the Agreement . . . . . . . . . . . . . . . 25
Section 10.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 10.3 Word Meanings. . . . . . . . . . . . . . . . . . . . . . 26
Section 10.4 Binding Provisions . . . . . . . . . . . . . . . . . . . 26
Section 10.5 Applicable Law . . . . . . . . . . . . . . . . . . . . . 26
Section 10.6 Separability of Provisions . . . . . . . . . . . . . . . 26
Section 10.7 Titles . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.8 Further Assurances . . . . . . . . . . . . . . . . . . . 26
Section 10.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . 26
Section 10.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . 26
Testimonium. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ii
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PAGE
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ANNEX A--Form of Action . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
1. Number and Designation . . . . . . . . . . . . . . . . . . . . . . A-1
2. Ranking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
3. Periodic Distributions (Dividends) . . . . . . . . . . . . . . . . A-I
4. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-2
5. Redemption Procedure . . . . . . . . . . . . . . . . . . . . . . . A-4
6. Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . A-6
7. Book-Entry-Only; The Depository Trust Company. . . . . . . . . . . A-8
ANNEX B--Form of Preferred Securities. . . . . . . . . . . . . . . . . . . . B-1
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of
PLC CAPITAL L.L.C. (the "Company"), dated as of May 20, 1994, is entered into by
and among Protective Life Corporation, a Delaware corporation ("Protective"),
and Protective LLC Holding, Inc., a Delaware corporation ("Protective LLC
Inc."), and those other Persons who become Members of the Company from time to
time, as hereinafter provided.
WHEREAS, Protective and Protective LLC Inc. have heretofore
formed a limited liability company pursuant to the Act by filing the Delaware
Certificate with the office of the Secretary of State of the State of Delaware
on March 24, 1994 and entering into the Limited Liability Company Agreement of
the Company, dated March 24, 1994 (the "Original Agreement"); and
WHEREAS, the Members desire to continue the Company as a limited
liability company under the Act and to amend and restate the Original Agreement
in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings
set forth below or in the Section of this Agreement referred to below:
"1940 ACT" shall have the meaning set forth in Section 2.8(c).
"ACCOUNTING PERIOD" shall mean the period beginning on (and
including) the day following any Adjustment Date (or, in the case of the first
Accounting Period, beginning on the date of formation of the Company) and ending
on (and including) the next succeeding Adjustment Date.
"ACT" shall mean the Delaware Limited Liability Company Act, Del.
Code Ann. tit. 6 Sections 18-101 ET SEQ., as from time to time amended and
including any successor statute of similar import (it being understood that all
references herein to specific sections of the Act shall be deemed also to refer
to any corresponding provisions of any such amended or successor statute).
"ACTION" shall have the meaning set forth in Section 3.4.
"ADJUSTMENT DATE" shall mean any of (a) the last day of each
Fiscal Year, (b) the day before the date of admission of any additional Member,
(c) the day before the date any Capital Contribution is made or deemed to be
made, (d) the day before the date a Member ceases to be a member of the Company,
(e) the record date of any distribution by the Company, (f) any date so
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established pursuant to any Action or Actions establishing any series of
Preferred Securities or (g) any other date determined by the Class A Interest
Holder as appropriate for a closing of the Company's books.
"AFFILIATE" shall mean, with respect to any Person, any Person
directly or indirectly controlled by or controlling or under common control with
such Person (or any successor to any of the foregoing). For the purpose of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"AGREEMENT" shall mean this Amended and Restated Limited
Liability Company Agreement of the Company, as it may be amended, restated or
supplemented from time to time as herein provided.
"CAPITAL ACCOUNT" shall have the meaning set forth in Section
3.5.
"CAPITAL CONTRIBUTIONS" shall mean the total amount of cash and
other property contributed to the Company by the Members as initial Capital
Contributions or additional Capital Contributions pursuant to Article III and,
in the case of the Common Interest Holders, pursuant to Section 6.2.
"CERTIFICATED PREFERRED SECURITIES" shall mean definitive
certificates substantially in the form attached hereto as Annex B, evidencing
Preferred Securities of any series held by a Member, issued pursuant to this
Agreement.
"CLASS A INTEREST" shall mean the limited liability company
interest of Protective, other than as a Holder of any Preferred Securities, in
and to the profits and losses of the Company and its right to receive
distributions of the Company's assets.
"CLASS B INTEREST" shall mean the limited liability company
interest of Protective LLC Inc., other than as a Holder of any Preferred
Securities, in and to the profits and losses of the Company and its right to
receive distributions of the Company's assets.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and any successor act thereto, and, to the extent applicable,
any Treasury Regulations promulgated thereunder (it being understood that all
references herein to specific sections of the Code shall be deemed also to refer
to any corresponding provisions of any such amended or successor act).
"COMMON INTEREST" shall mean each of the Class A Interest and the
Class B Interest.
"COMPANY" shall mean the limited liability company heretofore
established in accordance with the Original Agreement and hereby continued in
accordance with this Agreement by the parties hereto, as such limited liability
company may from time to time be constituted.
"COVERED PERSON" shall mean any Member, any Affiliate of a Member
or any officers, directors, shareholders, partners, employees, representatives
or agents of a Member or their respective Affiliates, or any employee or agent
of the Company or its Affiliates.
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"DELAWARE CERTIFICATE" shall mean the Certificate of Formation of
the Company as provided for pursuant to the Act, as originally filed with the
office of the Secretary of State of the State of Delaware on the Effective Date,
as amended and restated from time to time as herein provided.
"DEPOSITARY" shall mean, with respect to Preferred Securities of
any series, a clearing agency registered under the Securities Exchange Act of
1934 that is designated by the Action or Actions establishing such series to act
as Depositary for such Preferred Securities.
"DISTRIBUTION JUNIOR SECURITIES" shall have the meaning set forth
in Section 4.1(b).
"DISTRIBUTION PARITY SECURITIES" shall have the meaning set forth
in Section 4.1(b).
"EFFECTIVE DATE" shall have the meaning set forth in Section 2.6.
"FISCAL YEAR" shall mean the period beginning the Effective Date
and ending December 31, 1994 and thereafter shall mean the annual period
beginning each January 1 and ending the following December 31. The Company
shall have the same fiscal year for financial accounting and United States
Federal income tax purposes, except as otherwise required by the Code.
"GLOBAL PREFERRED SECURITY" shall mean a Preferred Security
substantially in the form of Annex B hereto that evidences all of the Preferred
Securities of any series.
"HOLDER" shall mean, as of any date, in the case of (a) the Class
A Interest, Protective, (b) the Class B Interest, Protective LLC Inc. and (c)
any Preferred Security, the Person in whose name the interest in and to the
profits and losses of the Company and right to receive distributions of the
Company's assets established pursuant to the Action or Actions relating to such
Preferred Security is registered on the Register.
"INDEMNIFIED PERSON" shall mean any Affiliate of the Class A
Interest Holder or any officers, directors, shareholders, partners, employees,
representatives or agents of the Class A Interest Holder, or any employee or
agent of the Company or its Affiliates.
"LIQUIDATION DISTRIBUTION" shall have the meaning set forth in
Section 9.2(b).
"LIQUIDATION PARITY SECURITIES" shall have the meaning set forth
in Section 9.2(b).
"LIQUIDATION PREFERENCE" shall mean, with respect to any
Preferred Security, the liquidation preference for such security pursuant to the
Action or Actions establishing such Preferred Security pursuant to Section 3.4.
"MEMBER" shall mean, as of any date, any Person who has been
admitted as a member of the Company pursuant to Section 3.1 of this Agreement
and has not ceased to be a member of the Company pursuant to Section 3.2, in
such Person's capacity as a member of the Company. For purposes of the Act,
each of the Class A Interest and the Class B Interest and each series of
Preferred Securities shall each constitute a separate class or group of members.
"NET PROFITS" or "NET LOSSES" shall mean, for any Accounting
Period, the net profits or net losses, as the case may be, of the Company for
such Accounting Period, determined on the accrual
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basis method of accounting in accordance with generally accepted accounting
principles, PROVIDED that in the case of any distribution of property in kind by
the Company, net profits or losses shall be determined as if the Company had
sold such property for the fair market value thereof at the time of such
distribution.
"ORIGINAL AGREEMENT" shall have the meaning set forth in the
recitals to this Agreement.
"OUTSTANDING" shall mean, when used with respect to Preferred
Securities of any series as of any date, the Preferred Securities of such series
theretofore executed and delivered by the Class A Interest Holder on behalf of
the Company pursuant to this Agreement except:
(a) Preferred Securities theretofore cancelled (or deemed
cancelled) by the Registrar or delivered to the Registrar for
cancellation pursuant to Section 7.2 hereof or the Action relating to
such series;
(b) Preferred Securities or portions thereof for which the
amount of the final distribution to be made thereon is set aside by
the Company and segregated from its other funds or deposited with the
Paying Agent for such series of Preferred Securities, in each case, in
trust for the Holders of such Preferred Securities as provided for in
the Action relating to such series;
(c) Preferred Securities in exchange for or in lieu of
which other Preferred Securities have been executed and delivered
pursuant to Section 7.5 hereof; and
(d) Preferred Securities that have been destroyed, lost,
mutilated or stolen for which replacement Preferred Securities have
been issued pursuant to Section 7.6 hereof.
"PAYING AGENT" shall mean, with respect to Preferred Securities
of any series, the Person that is designated as such in the Action or Actions
establishing such series of Preferred Securities, and any successor thereto
appointed by the Class A Interest Holder; PROVIDED that any such Person and any
such successor shall be a bank or trust company organized and in good standing
under the laws of the United States of America or any State thereof or the
District of Columbia and shall have capital, surplus and undivided profits
aggregating at least $50,000,000 according to its last published statement of
condition.
"PERCENTAGE INTEREST" shall mean, upon the issuance of any
Preferred Securities, with respect to a Holder of (a) the Class A Interest,
18%, (b) the Class B Interest, 3% and (c) Preferred Securities of any series,
the ratio that such Holder's aggregate total Liquidation Preference of such
series bears to the aggregate total Liquidation Preferences of all the Holders
of such Preferred Securities.
"PERSON" shall mean any individual or any general partnership,
limited partnership, corporation, joint venture, trust, limited liability
company, business trust, cooperative or association, and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person
where the context so admits.
"PREFERRED SECURITIES" shall have the meaning set forth in
Section 3.4.
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"PROTECTIVE" and "PROTECTIVE LLC INC." shall have the respective
meanings set forth in the recitals to this Agreement.
"REGISTER" shall mean have the meaning set forth in Section 8.1.
"REGISTRAR" shall mean the Class A Interest Holder or any Person
appointed by the Class A Interest Holder to keep the Register.
"SERIES A PREFERRED SECURITIES" shall mean the first series of
Preferred Securities issued by the Company.
"SERIES A SUBORDINATED DEBENTURES" shall mean the Subordinated
Debentures issued by Protective to the Company under the Subordinated Indenture
to represent the loan by the Company of the proceeds of the Series A Preferred
Securities and related Capital Contributions of the Common Interest Holders.
"SUBORDINATED DEBENTURE" shall mean any subordinated debenture
issued by Protective pursuant to the Subordinated Indenture in return for the
loan of the proceeds of the issue and sale of Preferred Securities of any series
and the related Capital Contributions of the Common Interest Holders, as
contemplated by Section 2.7 hereof.
"SUBORDINATED INDENTURE" shall mean the Subordinated Indenture to
be entered into between Protective and AmSouth Bank, N.A., as trustee, as
amended and supplemented from time to time.
"TAX MATTERS PARTNER" shall have the meaning set forth in Section
8.2(c).
"TRANSFER" shall mean any sale, transfer, alienation, assignment,
encumbrance, pledge, grant or option, or disposition other than any of the
foregoing that arises as a result of a merger or consolidation.
"TREASURY REGULATIONS" shall mean the Federal income tax
regulations, including any temporary or proposed regulations, promulgated under
the Code, as such Treasury Regulations may be amended from time to time (it
being understood that all references herein to specific sections of the Treasury
Regulations shall be deemed also to refer to any corresponding provisions of
succeeding Treasury Regulations).
ARTICLE II
THE COMPANY
Section 2.1 FORMATION; CONTINUATION. The Common Interest
Holders, by execution of the Original Agreement and the filing of the Delaware
Certificate, entered into and joined together in, and did thereby form, the
Company as a limited liability company under and pursuant to the Act. The
Members hereby agree to continue the Company as a limited liability company
under and pursuant to the Act and agree that the rights, duties and liabilities
of the Members shall be as provided in the Act, except as provided herein.
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Section 2.2 COMPANY NAME. The name of the Company heretofore
formed and continued hereby is "PLC Capital L.L.C.". The business of the
Company shall be conducted under such name or such other name or names as the
Class A Interest Holder may from time to time determine in its sole discretion.
Section 2.3 THE DELAWARE CERTIFICATE, ETC. The Class A Interest
Holder has heretofore been, and is hereby, designated an "authorized person",
within the meaning of the Act, and has executed and filed the Delaware
Certificate with the Office of the Secretary of State of the State of Delaware.
The Class A Interest Holder hereby agrees to execute, file and record all such
other certificates and documents, including amendments to the Delaware
Certificate, and to do such other acts as may be appropriate to comply with all
requirements for the formation, continuation and operation of a limited
liability company, the ownership by the Company of property, and the conduct by
the Company of business under the laws of the State of Delaware and any other
jurisdiction in which the Company may own property or conduct business.
Section 2.4 REGISTERED OFFICE AND REGISTERED AGENT. The
registered office of the Company shall be c/o The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801. The registered agent for service of process on the Company in
the State of Delaware shall be The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The
registered office and the registered agent of the Company may be changed by the
Class A Interest Holder from time to time in accordance with the then applicable
provisions of the Act and any other applicable laws.
Section 2.5 PRINCIPAL OFFICE. The principal office of the
Company initially shall be at 2801 Highway 280 South, Birmingham, Alabama 35223.
The Class A Interest Holder may change the Company's principal office from time
to time in its sole discretion.
Section 2.6 TERM OF COMPANY. The term of the Company commenced
on March 24, 1994, the date of the initial filing of the Delaware Certificate
with the office of the Secretary of State of the State of Delaware (the
"Effective Date"), and shall continue until December 31, 2094, unless it is
sooner dissolved pursuant to the provisions of Article IX of this Agreement.
Section 2.7 PURPOSES. The Company is formed and continued for
the sole object and purpose of issuing its Common Interests, the Series A
Preferred Securities and other series of Preferred Securities having terms
generally consistent with those of the Series A Preferred Securities (other than
dividend rate, and other than changes that would not adversely affect the
ability of the Company to make full and timely payments of periodic
distributions or payments upon dissolution to the Holders of the Series A
Preferred Securities), and lending the proceeds thereof and related capital
contributions of the Common Interest Holders to Protective in return for
Subordinated Debentures in aggregate principal amounts equal to the amounts of
such loans, bearing interest at a rate at least equal to the periodic
distribution rate, if any, established for the series of limited liability
company interests the proceeds of which are used to make such loans and
otherwise having terms generally consistent with those of the Series A
Subordinated Debentures (other than changes that would not adversely affect the
ability of the Company to make full and timely payments of periodic
distributions or payments upon dissolution to the Holders of the Series A
Preferred Securities), redeeming the Preferred Securities of any series in
accordance with the terms of such series, and engaging in any and all activities
that may be incidental or conducive to the foregoing. The Company shall not
engage in any "financial or insurance business" within the meaning of section
7704(d)(2) of the Code or in any other trade or business.
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Section 2.8 POWERS. (a) In furtherance of its purposes, but
subject to all of the provisions of this Agreement, the Company, and, in
accordance with Section 6.5 hereof, the Class A Interest Holder on behalf of the
Company, shall have the power and is hereby authorized to:
(i) execute, file and deliver any registration statements,
amendments and other documents and enter into agreements relating to
the issuance and sale by the Company of its Preferred Securities;
(ii) issue its Preferred Securities in accordance with this
Agreement;
(iii) loan money to Protective pursuant to the Subordinated Indenture
and exercise all of the powers, duties, rights and responsibilities
associated therewith;
(iv) take any and all actions necessary, convenient or
appropriate as lender, including, subject to the provisions hereof,
the granting or approval of waivers, consents or amendments of rights
or powers relating thereto and the execution of appropriate documents
to evidence such waivers, consents or amendments;
(v) invest any funds of the Company pending distribution or
payment of the same pursuant to the provisions of this Agreement;
(vi) determine and make distributions, in cash or otherwise, to
Members, in accordance with the provisions of this Agreement and of
the Act;
(vii) enter into, perform and carry out contracts of any kind,
including, without limitation, contracts with any Person affiliated
with any of the Members, necessary to, in connection with, or
incidental to the accomplishment of the purposes of the Company; and
(viii) do such other things and engage in such other activities as
may be necessary, convenient or advisable with respect to the conduct
of the business of the Company, and have and exercise all of the
powers and rights conferred upon limited liability companies formed
pursuant to the Act.
(b) The Company shall have no power or authority to borrow money
or to become liable for the borrowing of any other Person.
(c) The Class A Interest Holder is hereby authorized to conduct
its affairs and to operate the Company in such a way that the Company would not
be deemed to be an "investment company" required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act") or taxed as a
corporation for Federal income tax purposes and so that any loans made by the
Company to Protective will be treated as indebtedness for Federal income tax
purposes. In this connection, the Class A Interest Holder is (a) authorized to
take any action that the Class A Interest Holder determines, in its sole
discretion, to be necessary or desirable for such purposes that (i) is not
inconsistent with applicable law, the Delaware Certificate or this Agreement and
(ii) does not adversely affect the Holders of any Preferred Securities
Outstanding and (b) instructed not to take affirmative actions, not otherwise
contemplated by this Agreement, that would cause the Company to be deemed to be
an "investment company" under the 1940 Act or taxed as a corporation for Federal
income tax
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purposes or would cause any loans made by the Company to Protective not to be
treated as indebtedness for Federal income tax purposes.
Section 2.9 MERGER OR CONSOLIDATION. The Company may not
consolidate or merge with, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other body, except
pursuant to this Section 2.9, and subject to any additional restrictions or
requirements under any Action or Actions establishing any series of Preferred
Securities. The Class A Interest Holder may, without the consent of the Holders
of any series of Preferred Securities or the Class B Interest, cause the Company
to consolidate or merge with or into any limited liability company, limited
partnership, business trust or other similar entity formed under the laws of the
United States or any state or jurisdiction thereof or therein; PROVIDED that (a)
such successor entity expressly assumes all of the obligations of the Company
under any series of Preferred Securities then Outstanding, (b) such successor
entity is an entity expressly formed for the purpose of engaging in such merger
or consolidation and has engaged in no activities (other than those incidental
to formation) prior to such merger or consolidation and, at the time of the
consummation thereof, has no liabilities or preferred securities outstanding,
(c) such merger or consolidation does not adversely affect any Holder of
Preferred Securities, (d) such successor entity will he subject in all material
respects to all covenants binding on the Company herein contained, (e)
Protective expressly acknowledges such successor as the holder of the
Subordinated Debentures of Protective pertaining to each series of Preferred
Securities then Outstanding, (f) such merger or consolidation does not cause any
series of Preferred Securities then Outstanding to be delisted by any national
securities exchange or other organization on which such Preferred Securities are
then listed, (g) such merger or consolidation does not cause any Preferred
Securities then Outstanding to be downgraded by any "nationally recognized
statistical rating organization," as that term is defined by the Securities and
Exchange Commission for purposes of Rule 436(g)(2) under the Securities Act of
1933, (h) such merger or consolidation does not adversely affect the powers,
preferences and other special rights of Holders of any Preferred Securities then
Outstanding and (i) prior to such merger or consolidation the Company shall have
received an opinion of nationally recognized independent counsel experienced in
such matters to the effect that (i) Holders of any Preferred Securities then
Outstanding will not recognize any gain or loss for Federal income tax purposes
as a result of such merger or consolidation, (ii) such successor entity will be
treated as a partnership for Federal income tax purposes and such merger or
consolidation will not otherwise cause the Company to be subject to Federal
income tax or more than a de minimis amount of other taxes, (iii) following such
merger or consolidation, Protective and such successor entity are and will be in
compliance with the 1940 Act without registering thereunder as an investment
company and (iv) such merger or consolidation will not adversely affect the
limited liability of Holders of any Preferred Securities then Outstanding.
Section 2.10 TREATMENT AS PARTNERSHIP. The Members agree that
it is intended that the Company shall be treated as a partnership for United
States Federal income tax purposes and that the Agreement and all acts of the
Members thereof shall, to the fullest extent permitted by the Act, be
interpreted and construed accordingly.
ARTICLE III
MEMBERS; CAPITALIZATION
Section 3.1 ADMISSION OF MEMBERS. (a) By execution of this
Agreement, the Common Interest Holders hereby continue as members of the Company
and shall have such rights in and to the
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profits and losses of the Company and rights to receive distributions of the
Company's assets, and such other rights and obligations, as provided herein.
(b) Without execution of this Agreement, upon the issuance of
Preferred Securities as provided in this Article to a Person and payment for the
Preferred Securities acquired by such Person, which constitutes a request by
such Person that the Register reflect its admission as a Member, such Person
shall be admitted to the Company as a Member and shall become bound by this
Agreement, and the Register shall be adjusted to reflect such admission.
(c) If a Holder of any Preferred Securities transfers any such
Preferred Securities pursuant to Sections 7.2 or 7.5 hereof, the transferee of
such Preferred Securities shall, without execution of this Agreement or the
consent of any Member, upon its acquisition of Preferred Securities and the
receipt by the Registrar of a written request that the Register reflect its
admission as a member of the Company, be admitted to the Company as a Member
and become bound by this Agreement, and the Register shall be adjusted to
reflect such transfer and admission.
Section 3.2 CESSATION OF MEMBERSHIP. No Member shall resign
from the Company prior to the dissolution and winding up of the Company. A
Preferred Security Holder shall cease to be a Member upon a transfer of its
entire limited liability company interest in the Company in compliance with this
Agreement or upon the redemption of such Holder's entire limited liability
company interest in the Company as provided herein. A Preferred Securities
Holder shall not cease to be a Member upon the happening , with respect to such
Holder, of any of the events specified in Section 18-304 of the Act.
Section 3.3 COMMON INTERESTS. (a) CAPITAL CONTRIBUTIONS. As
of the date hereof, the Class A Interest Holder shall have contributed $7,500
and the Class B Interest Holder shall have contributed $2,500 to the Company as
their respective initial Capital Contributions. Each of the Class A Interest
Holder and the Class B Interest Holder shall make additional Capital
Contributions to the Company upon the issuance of any Preferred Securities and
at such other times as shall be necessary (including, without limitation,
pursuant to Section 6.2) such that, at all times, (i) the Capital Contributions
of the Class A Interest Holder and the Class B Interest Holder represent not
less than 18% and 3%, respectively, of the aggregate total Capital Contributions
of all of the Members and (ii) the Class A Interest and the Class B Interest
represent not less than 18% and 3%, respectively, of all interests in the
capital, income, gain, loss, deduction and credit of the Company.
(b) FORM OF COMMON INTERESTS. The Common Interests shall not be
evidenced by certificate or other written instrument, but shall only be
evidenced by this Agreement.
(c) COMMON INTEREST HOLDER AS PREFERRED SECURITIES HOLDER.
Subject to the terms of any Action or Actions establishing a series of Preferred
Securities and applicable law (including, without limitation, United States
Federal securities laws), a Common Interest Holder and its Affiliates may at any
time and from time to time purchase outstanding Preferred Securities (or
beneficial interests therein) by tender, in the open market or by private
agreement.
Section 3.4 PREFERRED SECURITIES. (a) The Company is
authorized to issue preferred limited liability company interests having such
designations, stated value, rights, privileges, restrictions, preferences and
other terms and provisions as may from time to time be established in a written
action or actions (each, an "ACTION") of the Class A Interest Holder providing
for issue of such series as hereinafter provided (such interests, the "PREFERRED
SECURITIES") and having terms generally consistent
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with those set forth in the Form of Action attached as Annex A hereto. In
connection with the foregoing, subject to the provisions of Section 2.7 and this
Section 3.4, the Class A Interest Holder is expressly authorized to issue one or
more series of Preferred Securities, and with respect to each such series to
establish by Action or Actions providing for the issue of such series:
(i) the maximum number of Preferred Securities to constitute
such series and the distinctive designation thereof;
(ii) whether the Preferred Securities of such series shall have
voting rights, in addition to any voting rights provided by law, and,
if so, the terms of such voting rights;
(iii) the periodic distribution rate, if any, on the Preferred
Securities of such series, the conditions and dates upon which such
distributions shall be payable, the preference or relation which such
distributions shall bear to the periodic distributions payable on any
other class or classes of limited liability company interests in the
Company or on any other series of Preferred Securities, and whether
such distributions shall be cumulative or noncumulative;
(iv) whether the Preferred Securities of such series shall be
subject to redemption by the Company, and if made subject to
redemption, the time, prices and other terms and conditions of such
redemption;
(v) the rights of the Holders of Preferred Securities of such
series upon the dissolution, liquidation or winding up of the Company;
(vi) whether or not the Preferred Securities of such series shall
be subject to the operation of a retirement or sinking fund and, if
so, the extent to and manner in which any such retirement or sinking
fund shall be applied to the purchase or redemption of the Preferred
Securities of such series for retirement or to other Company purposes
and the terms and provisions relative to the operation thereof;
(vii) whether or not the Preferred Securities of such series shall
be convertible into, or exchangeable for, limited liability company
interests of any other class or classes, or of any other series of
Preferred Securities, or securities of any other kind, including
securities issued by the Class A Interest Holder or any of its
Affiliates, and if so convertible or exchangeable, the price or prices
or the rate or rates of conversion or exchange and the method, if any,
of adjusting the same;
(viii) the limitations and restrictions, if any, to be effective
while any Preferred Securities of such series are outstanding upon the
payment of periodic distributions or other distributions on, and upon
the purchase, redemption or other acquisition by the Company of any
other class or classes of limited liability company interests or any
other series of Preferred Securities ranking junior to the Preferred
Securities of such series as to periodic distributions or
distributions of assets upon liquidation;
(ix) the conditions or restrictions, if any, upon the creation of
indebtedness of the Company or upon the issue of any additional
limited liability company interests (including additional Preferred
Securities of such series or any other series) ranking on a parity
with or
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prior to the Preferred Securities of such series as to periodic
distributions or distributions of assets upon liquidation; and
(x) such other relative rights, powers and duties as shall not
be inconsistent with this Section 3.4.
Any Action or Actions of the Class A Interest Holder pursuant to the provisions
of this Section 3.4 shall constitute an amendment and supplement to and part of
this Agreement.
(b) Notwithstanding anything else herein to the contrary, the
Company may not issue Preferred Securities of any series unless (i) such
Preferred Securities are created by a Form of Action in substantially the form
attached as Annex A hereto, (ii) the aggregate stated liquidation preference of
such Preferred Securities (as defined in such Form of Action) is not more than
79% of the aggregate principal amount of the Subordinated Debentures issued in
return for the loan of the proceeds of such Preferred Securities (together with
the related additional Capital Contributions of the Common Interest Holders) as
contemplated by Section 2.7 hereof, (iii) the aggregate periodic distributions
(as defined in such Form of Action) on such Preferred Securities payable on any
date are not more than 79% of the aggregate cash interest payable on such date
on the related Subordinated Debentures, (iv) such Preferred Securities are
redeemable on the days, and only on the days, on which the related Subordinated
Debentures are redeemable and (v) the aggregate redemption price of such
Preferred Securities on any day is not more than 79% of the aggregate redemption
price of the related Subordinated Debentures on such day (or, in the case of a
day which falls on the maturity date of the related Subordinated Debentures, the
aggregate principal amount of such Subordinated Debentures); PROVIDED, that the
Company may issue such Preferred Securities even if they do not meet the
criteria set out in clauses (i) through (v) above if the deviations therefrom,
individually or in the aggregate, will not adversely affect the ability of the
Company to make full and timely payments of periodic distributions or
Liquidation Distributions to the Holders of such Preferred Securities and the
Preferred Securities of all other series then Outstanding.
(c) In connection with, and subject to, the foregoing and
without limiting the generality thereof, the Class A Interest Holder is hereby
expressly authorized to take any action, including amendment of this Agreement,
without the vote or approval of any Member, including any Action to create under
the provisions of this Agreement a class (or series of a class) or group of
limited liability company interests that was not previously outstanding.
Without the vote or approval of any Member, the Class A Interest Holder may
execute, swear to, acknowledge, deliver, file and record whatever documents may
be required in connection with the issue from time to time of Preferred
Securities in one or more series as shall be necessary, convenient or desirable,
consistent with the terms of this Agreement, to reflect the issue of such
series, including, without limitation (but subject to the foregoing), one or
more underwriting agreements, indentures relating to any loans made by the
Company to Protective, guarantee agreements and any other contracts or
agreements contemplated thereby, or specifically described therein, all without
any further act, approval or vote of the Members.
(d) All Preferred Securities of any one series shall be
identical with each other in all respects, except that Preferred Securities of
any one series issued at different times may differ as to the dates from which
periodic distributions, if any, thereon shall be cumulative. All series of
Preferred Securities shall rank equally and be identical in all respects, except
as permitted by paragraph (a) of this Section 3.4, and all Preferred Securities
shall rank senior to the Common Interests both as to periodic distributions and
distributions of assets upon dissolution.
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Section 3.5 CAPITAL ACCOUNTS. a) A separate capital account (a
"Capital Account") shall be established and maintained for each Member,
including any substituted or additional Member who shall hereafter acquire an
interest in the Company, in accordance with the following provisions:
(i) To each Member's Capital Account there shall be credited (A)
the amount of cash and fair market value of the property actually
contributed by or on behalf of such Member to the Company (including,
in the case of any issue of any series of Preferred Securities
pursuant to Section 3.4, the proceeds of such issuance) and (B) such
Member's allocable share of Net Profits.
(ii) From each Member's Capital Account there shall be debited
(A) the amount of cash and the fair market value of any property
distributed to such Member pursuant to any provision of this Agreement
(including any periodic distribution, distribution on redemption or
any distribution in liquidation of any Member's interest in the
Company (whether in whole or in part)) and (B) such Member's allocable
share of Net Losses.
(b) A Member shall not be entitled to withdraw any part of its
Capital Account or to receive any distributions from the Company except as
provided in Article IV and Article IX hereof; nor shall a Member be entitled to
make any loan or Capital Contribution to the Company other than as expressly
provided herein. No loan made to the Company by any Member shall constitute a
Capital Contribution to the Company for any purpose.
(c) Except as required by the Act, no Member shall have any
liability for the return of the Capital Contribution of any other Member. A
Member who has more than one limited liability company interest in the Company
shall have a single Capital Account that reflects all such interests, regardless
of the class of interest owned and regardless of the time or manner in which the
interests were acquired.
Section 3.6 TRANSFERS OF CAPITAL ACCOUNTS. Upon any transfer of
a limited liability company interest in the Company as provided in this
Agreement, the transferee shall succeed to the allocable portion of the
transferor's Capital Account.
Section 3.7 OBLIGATION TO LEND FUNDS OR MAKE ADDITIONAL CAPITAL
CONTRIBUTIONS. (a) The Members shall not be required to lend any funds to the
Company.
(b) Each of the Members shall only be liable to make payment of
its respective Capital Contributions due upon initial issuance of the limited
liability company interests in the Company and, in the case of the Common
Interest Holders, other payments as expressly provided in this Agreement.
Beyond such amounts, such Member shall not, except as required by the express
provisions of the Act regarding repayment of sums wrongfully distributed to
Members, be required to make any further Capital Contributions.
(c) No Member shall have any obligation at any time to
contribute any funds to replenish any negative balance in its Capital Account
except, in the case of the Common Interest Holders, as provided in Section 9.5.
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ARTICLE IV
DISTRIBUTIONS
Section 4.1 PERIODIC DISTRIBUTIONS. (A) Holders of Preferred
Securities shall receive periodic distributions, if any, in accordance with the
Action or Actions establishing such series and the applicable provisions of
Section 3.4 and this Section 4.1.
(b) If periodic distributions have not been paid in full on any
series of Preferred Securities, the Company shall not:
(i) pay, or declare and set aside for payment, any periodic
distributions on any series of Preferred Securities ranking pari passu
as to periodic distributions of the Company with such series of
Preferred Securities (the "DISTRIBUTION PARITY SECURITIES"), unless
the amount of any periodic distributions declared on any series of
Distribution Parity Securities is paid or set aside for payment on
such series of Distribution Parity Securities and such series of
Preferred Securities on a pro rata basis on the date such periodic
distributions are paid on such Distribution Parity Securities, so that
(x) (A) the aggregate amount of periodic
distributions paid on such series of
Preferred Securities bears to (B) the
aggregate amount of periodic
distributions paid on such Distribution
Parity Securities
the same ratio as
(y) (A) the aggregate of all accumulated and
unpaid periodic distributions in respect
of such series of Preferred Securities
bears to (B) the aggregate of all
accumulated and unpaid periodic
distributions in respect of such
Distribution Parity Securities;
(ii) pay, or declare and set aside for payment, any periodic
distributions on any Common Interests or limited liability company
interests in the Company ranking junior to such Preferred Securities
as to periodic distributions ("DISTRIBUTION JUNIOR SECURITIES"); or
(iii) redeem, purchase or otherwise acquire any of such Preferred
Securities or any Distribution Parity Securities or Distribution Junior
Securities;
until, in each case, such time as all accumulated and unpaid periodic
distributions (whether or not declared) on such series of Preferred Securities
shall have been paid in full for all periodic distribution periods terminating
on or prior to, in the case of clauses (i) and (ii), such payment, and in the
case of clause (iii), the date of such redemption, purchase or acquisition.
(c) The Common Interest Holders shall, subject to the terms of
any Action or Actions establishing a series of Preferred Securities, and subject
to the applicable provisions of Section 3.4 and the Act, be entitled to receive
periodic cash distributions out of payments on the Subordinated Debentures, but
only after all amounts due Holders of Preferred Securities on that date have
been paid in full, and from funds legally available therefor.
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Section 4.2 RESTRICTED DISTRIBUTIONS. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
make a distribution to any Member on account of its limited liability company
interest in the Company if such distribution would violate Section 18-607 of the
Act or other applicable law.
Section 4.3 WITHHOLDING. If the Company or any agent of the
Company is required by law to withhold any portion of any distribution or
payment to or on behalf of any Member on account of taxes (or is otherwise
required to make any payment of taxes in respect of any Member or a beneficial
owner of any limited liability company interest in the Company), (a) the Company
or such agent shall withhold such amount from such distribution or payment
otherwise required to be made and make such payment to the appropriate taxing
authority and (b) amounts otherwise payable to such Member shall be reduced by
the amount of such withholding or payment of taxes.
ARTICLE V
ALLOCATIONS
Section 5.1 ALLOCATION OF NET PROFITS AND NET LOSSES. (a) Net
Profits for any Accounting Period shall be allocated on the last day of each
Accounting Period to and among the Members as follows:
(i) FIRST, to the Holders of any series of Preferred Securities
Outstanding during such Accounting Period in an amount equal to the
excess of (x) the amount of periodic distributions accumulated on such
series of Preferred Securities from the date of their issuance through
(and including) the last day of such Accounting Period (whether or not
declared or paid) over (y) the amount of Net Profits previously
allocated to such Holders pursuant to this clause (i), and among the
Holders of each such series of Preferred Securities pro rata in
proportion to their Percentage Interests; and
(ii) THEREAFTER, to the Common Interest Holders and among the
Common Interest Holders pro rata in proportion to their respective
Percentage Interests.
(b) Net Losses for any Accounting Period shall be allocated on
the last day of each Accounting Period to and among the Members as follows:
(i) FIRST, to the Common Interest Holders to the extent of the
positive balances of their Capital Accounts;
(ii) SECOND, to the Holders of any Preferred Securities
Outstanding during such Accounting Period to the extent of the
positive balances of their Capital Accounts; and
(iii) THEREAFTER, to the Common Interest Holders and among the
Common Interest Holders in proportion to their respective Percentage
Interests.
Section 5.2 TAX ALLOCATIONS. Subject to the terms of any Action
or Actions establishing a series of Preferred Securities, for Federal, state and
local income tax purposes, all income, gain, loss and deduction (and items
thereof) of the Company shall be allocated among the Members in a manner
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consistent with the allocation of Net Profits and Net Losses pursuant to Section
5.1 hereof. Notwithstanding the foregoing, the Class A Interest Holder shall
have the power to make such allocations for Federal, state and local income tax
purposes as may be necessary to maintain substantial economic effect or to
insure that such allocations are in accordance with the interests of the Members
in the Company, in each case within the meaning of the Code and any Treasury
Regulations thereunder. All matters concerning allocations for Federal, state
and local income tax purposes, including accounting procedures, not expressly
provided for by the terms of this Agreement shall be determined by the Class A
Interest Holder.
ARTICLE VI
RIGHTS AND OBLIGATIONS OF MEMBERS
Section 6.1 LIMITED LIABILITY OF PREFERRED SECURITIES HOLDERS.
Except as to any obligation it may have to repay funds that may have been
wrongfully distributed to it, no Preferred Securities Holder, solely by reason
of being a Member, will be liable for the debts, obligations and
liabilities of the Company, whether arising in contract, tort or otherwise,
which debts, obligations and liabilities shall be solely the debts, obligations
and liabilities of the Company and, as provided in Section 6.2 hereof, the
Common Interest Holders.
Section 6.2 LIABILITY OF THE COMMON INTEREST HOLDERS. (a) Each
of the Common Interest Holders, in their respective capacities as such, hereby
jointly and severally assume and shall be liable for the debts, obligations and
liabilities, whether arising in contract, tort or otherwise of the Company
(other than obligations of the Company to make payments in respect of Preferred
Securities), including without limitation:
(i) all expenses of the Company, the Common Interest Holders or their
Affiliates relating to the organization of the Company;
(ii) all expenses related to the business of the Company and all
administrative expenses of the Company, including the maintenance of
books and records of the Company and the preparation and dispatch to
the Members of distributions, financial reports, tax returns and
notices required pursuant to this Agreement or in connection with the
holding of any meetings of the Members;
(iii) all expenses incurred in connection with any litigation or
arbitration (including litigation brought by or on behalf of any
Member) involving the Company (including the cost of any investigation
and preparation) and the amount of any judgment or settlement paid in
connection therewith;
(iv) all expenses for indemnity or contribution payable by the
Company to any Person;
(v) all expenses incurred in connection with the collection of
amounts due to the Company from any Person;
(vi) all expenses incurred in connection with the preparation of
amendments to this Agreement;
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(vii) all taxes that may be imposed on the Company (other than
withholding or other similar taxes imposed on the Company as payor or
paying agent with respect to the Preferred Securities); and
(viii) all expenses incurred in connection with the dissolution,
liquidation and winding up of the Company.
It is intended that the foregoing, among other things, impose the same
obligation on the Common Interest Holders as each would have as a general
partner of a limited partnership organized under the Delaware Revised Uniform
Limited Partnership Act.
(b) Any payment made by the Common Interest Holders pursuant to
their obligations under this Section 6.2 shall be made pro rata in proportion to
their respective Percentage Interests and shall be considered additional Capital
Contributions by such Holders; PROVIDED that if any Common Interest Holder
fails to contribute its proportionate share of the amounts for which the Common
Interest Holders are liable under this Section 6.2, then such other Common
Interest Holder shall pay or cause to be paid such unpaid amount which shall be
treated (i) as a loan from such other Common Interest Holder to such Common
Interest Holder and (ii) as an additional Capital Contribution by such Common
Interest Holder. Any payment made by the Common Interest Holders pursuant to
their obligations under this Section 6.2 shall be made prior to any scheduled
date for any periodic distributions or redemption or Liquidation Distributions
with respect to any series of Preferred Securities. The purpose of the
foregoing is to ensure that any debts, obligations and liabilities of the
Company for which the Common Interest Holders have agreed to be jointly and
severally liable do not reduce funds that would otherwise have been available
for distribution (whether as periodic distributions or distributions in
redemption or liquidation) on or with respect to Preferred Securities.
(c) The obligations of the Common Interest Holders under this
Section 6.2 shall survive any dissolution, liquidation or winding up of the
Company.
Section 6.3 OTHER BUSINESS, ETC. (a) In accordance with
Section 18-107 of the Act, but subject to the provisions of Section 2.7 hereof,
the Members (including the Common Interest Holders) may lend money to, borrow
money from, act as surety, guarantor or endorser for, guarantee or assume one or
more obligations of, provide collateral for, and transact other business with,
the Company and, subject to applicable law, shall have the same rights and
obligations with respect to any such matter as a Person who is not a Member.
(b) The Members and any of their respective Affiliates may
engage in or possess an interest in other business ventures (unconnected with
the Company) of every kind and description, independently or with others. None
of the Company or other Members shall have any rights in or to such independent
ventures or the income or profits therefrom by virtue of this Agreement. No
Member or any of its Affiliates shall be obligated to present any particular
investment opportunity to the Company, even if such opportunity is of a
character that, if presented to the Company, could be taken by the Company and
any Member and any of its Affiliates shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such investment opportunity.
Section 6.4 EXCULPATION AND INDEMNIFICATION. (a) EXCULPATION.
Neither any Indemnified Person nor, except as provided in Section 6.2(a), the
Class A Interest Holder shall be liable to the Company or any other Covered
Person for any loss, damage or claim incurred by reason of any
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act or omission performed or omitted by such Indemnified Person or the Class A
Interest Holder in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of authority conferred on such
Indemnified Person or the Class A Interest Holder by this Agreement, except that
an Indemnified Person and the Class A Interest Holder shall be liable for any
such loss, damage or claim incurred by reason of such Person's gross negligence
or willful misconduct.
(b) RELIANCE ON REPORTS AND INFORMATION. An Indemnified Person
and, subject to Section 6.2(a), the Class A Interest Holder shall be fully
protected in relying in good faith upon the records of the Company and upon such
information, opinions, reports or statements presented to the Company by any
Person as to matters the Indemnified Person or the Class A Interest Holder, as
the case may be, reasonably believes are within such other Person's professional
or expert competence and who has been selected with reasonable care by or on
behalf of the Company, including information, opinions, reports or statements as
to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid.
(c) INDEMNIFICATION. To the fullest extent permitted by
applicable law, an Indemnified Person shall be entitled to indemnification from
the Company for any loss, damage or claim incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Agreement, except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified Person by
reason of gross negligence or willful misconduct with respect to such acts or
omissions; PROVIDED, HOWEVER, that, except as provided in Section 6.2(a), any
indemnity under this Section 6.4(c) shall be provided out of and to the extent
of Company assets only, and no Covered Person shall have any personal liability
on account thereof.
(d) EXPENSES. To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Company prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Company of an undertaking
by or on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 6.4(c) hereof.
(e) DUTIES. To the extent that, at law or in equity, an
Indemnified Person or the Class A Interest Holder has duties (including
fiduciary duties) and liabilities to the Company or any other Covered Person, no
such Indemnified Person or, except as provided in Section 6.2(a), the Class A
Interest Holder, as the case may be, shall be liable to the Company or to any
other Covered Person for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict
the duties and liabilities of any Indemnified Person or the Class A Interest
Holder otherwise existing at law or in equity, are agreed by the Members to
replace such other duties and liabilities of such Person.
(f) DISCRETION. To the extent permitted by applicable law,
whenever in this Agreement any Person is permitted or required to make a
decision (i) in its "discretion" or under a grant of similar authority or
latitude, such Person shall be entitled to consider only such interests and
factors as it desires, including its own interests, and shall have no duty or
obligation to give any consideration to any interest of or factors affecting the
Company or any other Person, or (ii) in its "good faith" or under another
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express standard, such Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this Agreement or
other applicable law.
Section 6.5 MANAGEMENT AND CONTROL. In accordance with Section
18-402 of the Act, management and control of the Company shall be vested in the
Class A Interest Holder in its capacity as a Member and all decisions with
respect to the management and control of the Company shall be made by the Class
A Interest Holder. There shall not be a "manager" (within the meaning of the
Act) of the Company. The Class A Interest Holder shall conduct the affairs of
the Company in accordance with this Agreement. In such capacity, the Class A
Interest Holder is an agent of the Company's business, and the actions of the
Class A Interest Holder taken in accordance with this Agreement shall bind the
Company. Except as expressly provided herein or in the Action or Actions
establishing any series of Preferred Securities, Members other than the Class A
Interest Holder will have no right to participate in the management and control
of the Company or have the right or power to vote on any question or matter or
in any proceeding or to be represented at, or receive notice of, any meeting of
Members. The Class B Interest Holder and the Preferred Securities Holders shall
not be agents of the Company and shall not have any right, power or authority to
transact any business in the name of the Company or to act for or on behalf of
or to bind the Company.
Section 6.6 MEETINGS OF MEMBERS. (a) Meetings of the Members
of any class (or series thereof) or of all classes (or series thereof) of the
Company's Members may be called at any time by the Class A Interest Holder or as
provided in any Action or Actions establishing a series of Preferred Securities.
Except to the extent otherwise provided in any such Action, the provisions of
this Section 6.6 shall apply to meetings of Members.
(b) The Class A Interest Holder may fix a date not more than 60
nor less than 10 days preceding the date of any meeting of Members, or preceding
the last day on which the consent of Members may be effectively expressed for
any purpose without a meeting, as a record date for the determination of the
Members entitled (i) to notice of, and to vote at, such meeting and any
adjournment thereof or (ii) to express such consent, and, in either such case,
such Members, and only such Members as shall be Members of record on the date so
fixed, shall be entitled to notice of, and to vote at, such meeting and any
adjournment thereof, or to express such consent, as the case may be,
notwithstanding any transfer of any limited liability company interest in the
Company on the Register after any such record date fixed as aforesaid.
(c) Except as otherwise provided by law, the Holders of a
majority in stated liquidation preference (plus accumulated and unpaid periodic
distributions) of the limited liability company interests in the Company
entitled to vote at the meeting shall constitute a quorum at all meetings of the
Members. If a class or series of a class of limited liability interests in the
Company is entitled to vote as such a class or series at a meeting of Members,
Holders of a majority in stated liquidation preference (plus accumulated and
unpaid periodic distributions) of the limited liability company interests of
such class or series entitled to vote at such meeting shall constitute a quorum
at such meeting. In the absence of a quorum, the Holders of a majority in
stated liquidation preference (plus accumulated and unpaid periodic
distributions) of all such limited liability company interests present in person
or by proxy may adjourn any meeting, from time to time, until a quorum shall be
present. At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as
originally called.
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(d) Except as otherwise provided by law, no vote on any question
upon which a vote of the Members may be taken need be by ballot unless the Class
A Interest Holder shall determine that it shall be by ballot or the Holders of a
majority of the limited liability company interests present in person or by
proxy and entitled to participate in such vote shall so demand. In a vote by
ballot each ballot shall state the amount in stated liquidation preference (plus
accumulated and unpaid periodic distributions) of limited liability company
interests voted and the name of the Member or proxy voting. Unless otherwise
provided by law or by this Agreement, all questions shall be decided by the vote
of the Holders of a majority in stated liquidation preference (plus accumulated
and unpaid periodic distributions) of the limited liability company interests
present in person or by proxy at the meeting and entitled to vote on the
question.
(e) Solely for purposes of this Section 6.6, in determining the
"stated liquidation preference" of the Common Interests, each of the Common
Interests shall be treated as having a "stated liquidation preference" equal to
the amount that the Holder of such Common Interest would be entitled to receive
with respect to its Common Interest if the Company were liquidated on the date
of such vote (with its assets being deemed to have been sold for cash in an
amount equal to the book value thereof) and the proceeds of such liquidation
distributed in accordance with the provisions of Article IX hereof.
(f) Each Member entitled to vote at a meeting of Members or to
express consent to Company action in writing without a meeting may authorize
another person or persons to act for him by proxy. A proxy acting for any
Member shall be duly appointed by an instrument in writing subscribed by such
Member.
(g) Any action required to or which may be taken at a meeting of
Members may be taken without a meeting, without prior notice and without a vote,
if a consent or consents in writing, setting forth the action so taken, shall be
signed by the Holders of outstanding limited liability company interests in the
Company having not less than the minimum number of votes that would be necessary
to authorize such action at a meeting at which all limited liability company
interests in the Company entitled to vote thereon were present and voted and
shall be delivered to the Company by delivery to the Class A Interest Holder
(who shall have custody of the books in which proceedings of meetings of Members
are recorded).
(h) The Class A Interest Holder, in its sole discretion, shall
establish all other provisions relating to meetings of Members, including notice
of the time, place or purpose of any meeting at which any matter is to be voted
on by any Members, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any such
right to vote, in each case consistent with the terms hereof and any relevant
Action and in accordance with Section 18-302(c) of the Act.
ARTICLE VII
TRANSFERS OF INTERESTS, ETC.
Section 7.1 TRANSFERS OF INTERESTS. (a) Neither the Class A
Interest Holder nor the Class B Interest Holder may Transfer any of its Class A
Interest or Class B Interest, as the case may be.
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(b) Subject to Section 7.4 and the terms of any Action or
Actions establishing a series of Preferred Securities, Preferred Securities
shall be freely transferable by a Holder of Preferred Securities.
(c) Notwithstanding any other provision of this Agreement, any
Transfer of any limited liability company interest in the Company in
contravention of any of the provisions of this Article shall be void and
ineffective, and shall not bind, or be recognized by, the Company.
Section 7.2 REGISTRATION AND REGISTRATION OF TRANSFER OF
PREFERRED SECURITIES. The Registrar shall provide for the registration of
Preferred Securities and of transfers of Preferred Securities. Upon surrender
for registration of transfer of any Preferred Securities of any series, the
Registrar shall cause one or more new Preferred Securities of the same series in
the same aggregate stated liquidation preference to be issued in the name of the
designated transferee or transferees. Every Preferred Security surrendered for
registration of transfer shall be duly endorsed, or be accompanied by a written
instrument of transfer and request that the Register be amended to reflect such
transfer in form satisfactory to the Registrar duly executed by the Holder
thereof and the transferee, or, in either case, his or her attorney duly
authorized in writing. Each Preferred
Security surrendered for registration of transfer shall be cancelled by the
Registrar. No service charge shall be made for any registration of transfer of
Preferred Securities under this Section 7.2; the Registrar may require the
payment (with the giving of such indemnity as the Registrar may require) of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses connected therewith. A transferee of
a Preferred Security transferred in accordance with this Section shall be
admitted to the Company as a Member in accordance with Section 3.1(c) and shall
be entitled to the rights and subject to the obligations of a Holder of
Preferred Securities hereunder.
Section 7.3 PERSONS DEEMED HOLDERS OF PREFERRED SECURITIES.
Prior to due presentment of any Preferred Security for registration of transfer,
the Company, the Registrar and the Paying Agent may treat the Person in whose
name such Preferred Security shall be registered in the Register of the Company
as the sole Holder of such Preferred Security for purposes of receiving periodic
distributions and for all other purposes whatsoever and neither the Company, the
Registrar nor the Paying Agent shall be affected by notice to the contrary.
Section 7.4 GLOBAL PREFERRED SECURITIES. The Preferred
Securities of any series, on original issuance, will be issued in the form of
one or more Global Preferred Securities to be delivered to the Depositary
designated for such Global Security in the Action or Actions establishing such
series or a nominee thereof or a custodian therefor and shall initially be
registered in the Register of the Company in the name of such Depositary or a
nominee thereof, and each such Global Preferred Security shall constitute a
single Preferred Security for all purposes hereunder. Unless and until fully
registered Certificated Preferred Securities have been issued pursuant to
Section 7.5:
(i) the Company and the Registrar shall be entitled, in
accordance with Section 7.3, to deal with the Depositary or its
nominee for all purposes of this Agreement (including the payment of
periodic distributions on the Preferred Securities and receiving
approvals, votes or consents hereunder) as the sole Holder of the
Preferred Securities and shall have no obligation to the beneficial
owners of any interests in such Preferred Securities;
(ii) notwithstanding any other provisions hereof, no Global
Preferred Security may be exchanged in whole or in part for Preferred
Securities registered, and no transfer of a
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Global Preferred Security in whole or in part may be registered, in the
name of any Person other than the Depositary for such Global Preferred
Security or a nominee thereof; and
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this
Section shall control.
Section 7.5 CERTIFICATED PREFERRED SECURITIES. If the
Depositary (i) elects to discontinue its services as securities depository as to
any series of Preferred Securities and gives reasonable notice thereof to the
Company, or (ii) the Depositary ceases to be a clearing agency registered under
the Securities Exchange Act of 1934 and, in the case of either (i) or (ii)
above, no successor Depositary is named by the Company within 90 days after the
Company receives such notice or becomes aware of such change in status, then
Certificated Preferred Securities shall be prepared by the Company. Upon
surrender of the Global Preferred Security by the Depositary, accompanied by
registration instructions (which shall constitute a written request that the
Register be amended to reflect such transfer), the Registrar shall cause
Certificated Preferred Securities issued in exchange for such Global Preferred
Security or any portion thereof to be registered in such names as the Depositary
shall direct. Any Person receiving a Certificated Preferred Security in
accordance with this Section 7.5 shall be admitted to the Company as a Member in
accordance with Section 3.1(c) and shall be entitled to the rights and subject
to the obligations of a Holder of Preferred Securities. The Certificated
Preferred Securities shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Registrar, as
evidenced by its execution thereof.
Section 7.6. REPLACEMENT PREFERRED SECURITIES. If a mutilated
Preferred Security is surrendered to the Registrar, the Registrar shall execute
and deliver in exchange therefor a replacement Preferred Security, of the same
series, containing identical terms and provisions and bearing a number not
contemporaneously outstanding. If there shall be delivered to the Registrar (i)
evidence to its satisfaction of the destruction, loss or theft of any Preferred
Security and (ii) such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Registrar that such Preferred
Security has been acquired by a bona fide purchaser, the Registrar shall execute
and deliver, in lieu of any such destroyed, lost or stolen Preferred Security, a
replacement Preferred Security, of the same series, containing identical terms
and provisions and bearing a number not contemporaneously outstanding. Upon the
issuance of any new Preferred Security under this Section, the Registrar may
require the payment (with the giving of such indemnity as the Registrar may
require) of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Preferred Securities.
ARTICLE VIII
BOOKS; ACCOUNTING; TAX ELECTIONS; REPORTS
Section 8.1 BOOKS AND RECORDS. The Class A Interest Holder
shall keep, or cause to be kept, complete and accurate books and records of
account of the Company. The books of the Company (other than books required to
maintain Capital Accounts) shall be kept on the accrual basis of accounting, and
otherwise in accordance with generally accepted accounting principles
consistently applied, and shall at all times be maintained or made available at
the principal office of the Company. A
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current list of the full name and last known business, residence or mailing
address of each Member, set forth in alphabetical order (the "REGISTER"), a copy
of the Delaware Certificate, including all certificates of amendment and/or
restatement thereof or thereto and executed copies of all powers of attorney
pursuant to which this Agreement, the Delaware Certificate or any certificate of
amendment and/or restatement has been executed, promptly after becoming
available, copies of the Company's Federal, state and local income tax returns
and reports, if any, for each year and the three most recent years, copies of
this Agreement (including any Action or other amendment thereof) and of any
financial statements of the Company for the three most recent years, other
information regarding the status of the business and financial condition of the
Company, information regarding the amount, a description and a statement of the
agreed value of the contributions (in cash or kind) contributed by each Member
and which each Member has agreed to contribute in the future, and the date on
which each became a Member and all other records and information that Members
have a right to obtain or are required to be maintained pursuant to the Act,
shall be maintained at the principal office of the Company. Such books and
records of account of the Company shall be open to inspection and examination at
reasonable times by each Member and its duly authorized representative for any
purpose reasonably related to such Member's interest in the Company.
Notwithstanding any other provision of this Agreement, the Class A Interest
Holder may, to the maximum extent permitted by applicable law, keep confidential
from the Members information which the Class A Interest Holder reasonably
believes to be in the nature of trade secrets or other information the
disclosure of which the Class A Interest Holder reasonably believes is not in
the best interests of the Company or could damage the Company or its business or
which the Company or the Class A Interest Holder is required by law or by an
agreement with any other Person to keep confidential.
Section 8.2 FILINGS OF RETURNS AND OTHER WRITINGS; TAX MATTERS
PARTNER; TAX ELECTIONS. (a) The Class A Interest Holder shall cause the
preparation and timely filing of all Company tax returns and shall, on behalf of
the Company, timely file all other writings required by any governmental
authority having jurisdiction to require such filing.
(b) After the end of each Fiscal Year, the Class A Interest
Holder shall cause to be prepared and transmitted, as promptly as possible, and
in any event within 90 days of the close of the Fiscal Year, a Federal income
tax form K-1 (and any successor form thereto) and such other tax information as
may be required by law.
(c) Unless and until the Members shall otherwise agree, the
Class A Interest Holder shall serve as the "tax matters partner" (as such term
is defined in Section 6231(a)(7) of the Code, the "Tax Matters Partner") for
purposes of Section 6231 of the Code.
(d) Subject to Section 6.2(a), promptly following the written
request of the Tax Matters Partner, the Company shall, to the fullest extent
permitted by law, reimburse and indemnify the Tax Matters Partner (who shall,
together with the other Common Interest Holder, then indemnify the Company
pursuant to Section 6.2 hereof) for all reasonable expenses, including
reasonable legal and accounting fees, claims, liabilities, losses and damages
incurred by the Tax Matters Partner in connection with any administrative or
judicial proceeding with respect to the tax liability of the Members.
(e) The provisions of this Section 8.2 shall survive the
termination of the Company or the termination of any Member's interest in the
Company and shall remain binding on the Members for as long a period of time as
is necessary to resolve with the Internal Revenue Service any and all matters
regarding the Federal income taxation of the Company or the Members.
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(f) The Class A Interest Holder may, in its discretion, make the
election provided for in Section 754 of the Code.
ARTICLE IX
TERMINATION
Section 9.1 EVENTS OF DISSOLUTION. (a) In accordance with
Section 18-801 of the Act, the Company shall be dissolved and the affairs of the
Company wound up upon the occurrence of any of the following events:
(i) a unanimous written decision of the Members to dissolve the
Company;
(ii) the death, retirement, resignation, expulsion, bankruptcy
(as defined in Section 18-304 of the Act) or dissolution of a Common
Interest Holder or the occurrence of any other event which terminates
the continued membership of a Common Interest Holder in the Company,
unless, if there is more than one Member remaining, the business of
the Company is continued by the consent of all the remaining Members
within ninety days following the occurrence of any such event;
(iii) the entry of a decree of judicial dissolution under Section
18-802 of the Act;
(iv) a merger or consolidation of the Company other than as
expressly permitted by Section 2.9;
(v) in any event, at 12:00 midnight on December 31, 2094.
For purposes of the clause (ii) above, a merger or consolidation of any Common
Interest Holder into or with any other entity shall not cause the Company to
dissolve and the surviving entity will continue to hold the Common Interests
formerly held by such Holder.
(b) Dissolution of the Company shall be effective on the day on
which the event occurs giving rise to the dissolution, but the Company shall not
terminate until the assets of the Company shall have been distributed as
provided herein and a certificate of cancellation of the Delaware Certificate
has been filed with the Secretary of State of the State of Delaware.
(c) The Company shall not be dissolved by the admission of
Members in accordance with the terms of this Agreement. Except as provided in
Section 9.1(a)(ii), the death, retirement, resignation, expulsion, bankruptcy
(as defined in Section 18-304 of the Act) or dissolution of a Member or the
occurrence of any event that terminates the continued membership of a Member in
the Company, shall not cause the Company to be dissolved and its affairs wound
up so long as the Company at all times has at least two Members. Upon the
occurrence of any such event, the business of the Company shall be continued
without dissolution.
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(d) The Class A Interest Holder agrees, to the extent permitted
by law, that, for so long as any Preferred Securities remain Outstanding, it
will not voluntarily dissolve, liquidate or wind up the Company.
(e) Upon the dissolution of the Company, the Class A Interest
Holder shall promptly notify the Members of such dissolution.
Section 9.2 PROCEEDS OF LIQUIDATION. (a) Upon dissolution of
the Company, the Class A Interest Holder, as liquidating trustee, shall
immediately commence to wind up the Company's affairs; provided, however, that a
reasonable time shall be allowed for the orderly liquidation of the assets of
the Company and the satisfaction of liabilities to creditors so as to enable the
Members to minimize the normal losses attendant upon a liquidation. Upon the
liquidation of the Company, all proceeds resulting therefrom (or from any other
source during the period of winding up of the Company) shall be applied (i)
first, to creditors of the Company, including Members who are creditors, to the
extent permitted by law, in satisfaction of the liabilities of the Company
(whether by payment or the making of reasonable provision for payment thereof);
and (ii) second, subject to the terms of any Action or Actions establishing a
series of Preferred Securities, to the Holders of any Series of Preferred
Securities Outstanding to the extent of their Liquidation Distributions (as
defined below) and (iii) to the Common Interest Holders in proportion to the
positive balances of the Capital Accounts of such Common Interest Holders (after
reflecting in such Capital Accounts all adjustments thereto necessitated by (x)
all other Company transactions for the Fiscal Year of the Company in which such
liquidation occurs prior to or simultaneously with such liquidation and (y) such
liquidation).
(b) In the event of any voluntary or involuntary dissolution,
liquidation or winding up of the Company, the Holders of each series of
Preferred Securities then Outstanding ranking pari passu as to distributions
upon dissolution, liquidation or winding up of the Company (the "LIQUIDATION
PARITY SECURITIES") or, if there is only one series of Preferred Securities
Outstanding, the Holders of such series of Preferred Securities will be
entitled to receive out of the assets of the Company available for distribution
to Members, before any distribution of assets is made to the Holders of the
Common Interests or any other class of limited liability company interests of
the Company ranking junior to the Preferred Securities of such series as to
distributions upon dissolution, liquidation or winding up of the Company, an
amount equal to the aggregate of the stated liquidation preference of such
series and all accumulated and unpaid periodic distributions (whether or not
declared) to the date of payment (such amount for each such series, the
"LIQUIDATION DISTRIBUTION") payable in cash. If, upon any such dissolution,
liquidation or winding up the Liquidation Distribution can be paid only in part
because the Company has insufficient assets available to pay in full the
aggregate maximum Liquidation Distributions for all series of Liquidation
Parity Securities, then the amounts payable directly by the Company on any one
series of Liquidation Parity Securities and on all other Liquidation Parity
Securities shall be paid on a pro rata basis, so that
(i) (x) the aggregate amount paid as the Liquidation
Distribution for any one series bears to (y) the
aggregate amount paid as liquidation distributions
on all other Liquidation Parity Securities
the same ratio as
(ii) (x) the aggregate Liquidation Distribution for
such series bears to (y) the aggregate maximum
liquidation distributions on all other Liquidation
Parity Securities.
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Section 9.3 APPLICATION OF ASSETS. Subject to the terms of any
Action or Actions establishing a series of Preferred Securities, and subject to
the applicable provisions of Section 3.4, in the event of dissolution, the
Company shall conduct only such activities as are necessary to wind up its
affairs (including the sale of the assets of the Company in an orderly manner),
and the assets of the Company shall be applied in the manner, and in the order
of priority, set forth in Section 9.2.
Section 9.4 GAINS OR LOSSES IN PROCESS OF LIQUIDATION. Subject
to the terms of any Action or Actions establishing a series of Preferred
Securities, and subject to the applicable provisions of Section 3.4, any gain or
loss on disposition of Company property in the process of liquidation shall be
credited or charged to the Capital Accounts of each Member in accordance with
the provisions of Article V. Any property distributed in kind in the
liquidation shall be valued and treated as though the property were sold at its
fair market value and the cash proceeds were distributed. The difference
between the fair market value of property distributed in kind and its book value
shall be treated as a gain or loss on the sale of such property and shall be
credited or charged to the Capital Account of each Member in accordance with
Article V; PROVIDED, HOWEVER, that no Member shall have the right to request or
require the distribution of the assets of the Company in kind.
Section 9.5 COMMON INTEREST HOLDER RESTORATION OF NEGATIVE
CAPITAL ACCOUNT. If on dissolution of the Company and after giving effect to
the distributions of all assets of the Company in accordance with Section 9.2,
the Capital Account of any Common Interest Holder is less than zero, then such
Common Interest Holder shall return to the Company an amount equal to the amount
by which the Capital Account of such Person is less than zero.
ARTICLE X
MISCELLANEOUS
Section 10.1 AMENDMENT TO THE AGREEMENT. Except as otherwise
provided in this Agreement or by any applicable terms of any Action or Actions
establishing a series of Preferred Securities, this Agreement may be amended by,
and only by, a written instrument executed by the Class A Interest Holder;
PROVIDED, HOWEVER, that no amendment shall be made, and any such purported
amendment shall be void and ineffective, unless the Company shall have received
an opinion of independent counsel that, after giving effect to the amendment,
the Company will be treated as a partnership for United States Federal income
tax purposes.
Section 10.2 NOTICES. (a) Any and all notices, consents,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately given only if in writing and the same shall
be delivered either in hand or by mail, telecopy or Federal Express or similar
expedited commercial carrier, addressed to the recipient of the notice, postage
prepaid and registered or certified with return receipt requested (if by mail),
or with all freight charges prepaid (if by Federal Express or similar carrier).
(b) All notices, demands, and requests to be sent hereunder
shall be deemed to have been given for all purposes of this Agreement upon the
date of receipt or refusal.
(c) All such notices, demands and requests shall be addressed as
follows: (i) if to Protective, at P.O. Box 2606, Birmingham, Alabama, 35202,
Attention: Deborah J. Long, Esq., Senior
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Vice President and General Counsel, Facsimile: (205) 868-3597, Telephone: (205)
879-9230, (ii) if to Protective Holding Inc., at P.O. Box 2606, Birmingham,
Alabama, 35202, Attention: Deborah J. Long, Esq., Facsimile: (205) 868-3597,
Telephone: (205) 879-9230 and (iii) if to the Company, at P.O. Box 2606,
Birmingham, Alabama, 35202, Deborah J. Long, Esq., Facsimile: (205) 868-3597,
Telephone: (205) 879-9230.
(d) By giving to the other parties written notice thereof, the
parties hereto and their respective successors and assigns shall have the right
from time to time and at any time during the term of this Agreement to change
their respective addresses effective upon receipt by the other parties of such
notice and each shall have the right to specify as its address any other address
within the United States of America.
Section 10.3 WORD MEANINGS. The words such as "herein",
"hereinafter", "hereof" and "hereunder" refer to this Agreement as a whole and
not merely to a subdivision in which such words appear unless the context
otherwise requires. The singular shall include the plural and the masculine
gender shall include the feminine and neuter, and vice versa, unless the context
otherwise requires.
Section 10.4 BINDING PROVISIONS. The covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the heirs,
legal representatives, successors and assigns of the respective parties hereto.
Section 10.5 APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. IN THE EVENT OF A CONFLICT BETWEEN
ANY PROVISION OF THIS AGREEMENT AND ANY NONMANDATORY PROVISION OF THE ACT, THE
PROVISION OF THIS AGREEMENT SHALL CONTROL AND TAKE PRECEDENCE.
Section 10.6 SEPARABILITY OF PROVISIONS. Each provision of this
Agreement shall be considered separable and if for any reason any provision or
provisions herein are determined to be invalid, unenforceable or illegal under
any existing or future law, such invalidity, unenforceability or illegality
shall not impair the operation of or affect those portions of this Agreement
which are valid, enforceable and legal.
Section 10.7 TITLES. Section titles are for descriptive
purposes only and shall not control or alter the meaning of this Agreement as
set forth in the text.
Section 10.8 FURTHER ASSURANCES. The Members shall execute and
deliver such further instruments and do such further acts and things as may be
required to carry out the intent and purposes of this Agreement.
Section 10.9 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original of this
Agreement.
Section 10.10 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties hereto with respect to the transactions
contemplated herein, and supersedes all prior understandings or agreements
between the parties.
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Exhibit 4(d)
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the day and year first-above written.
PROTECTIVE LIFE CORPORATION
/s/ Jim E. Massengale
------------------------
Jim E. Massengale
Senior Vice President
PROTECTIVE LLC HOLDING, INC.
/s/ R. Stephen Briggs
-------------------------
R. Stephen Briggs
Executive Vice President
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ANNEX A
FORM OF ACTION
TERMS OF THE [ ]% CUMULATIVE
MONTHLY INCOME PREFERRED SECURITIES, SERIES [ ]
Protective Life Corporation, a Delaware corporation ("Protective"
or the "Class A Interest Holder") and the Class A Interest Holder of PLC Capital
L.L.C., a limited liability company formed under the laws of the State of
Delaware (the "Company"), HEREBY CERTIFIES:
I. That pursuant to the terms of the Amended and Restated
Limited Liability Company Agreement of the Company, dated as of May 20, 1994,
among Protective, Protective LLC Holding, Inc., a Delaware corporation, and the
other Persons who become Members of the Company from time to time as therein
provided (the "Agreement"), the Company authorized the creation of one or more
series of preferred limited liability interests in the Company (the "Preferred
Securities"); and
II. That by this duly adopted Action, the Class A Interest
Holder, on behalf of the Company, pursuant to authority granted to it in the
Agreement, hereby creates a new series of Preferred Securities and hereby fixes
the rights, powers and duties of, and other matters relating to, said series as
follows (capitalized terms used herein without definition have the meanings
ascribed to such terms in the Agreement):
1. NUMBER AND DESIGNATION. _________ Preferred Securities of
the Company, liquidation preference [$ ] per Preferred Security, are hereby
constituted as a series of preferred limited liability company interests,
designated as "[ ]% Cumulative Monthly Income Preferred Securities, Series [ ]"
(hereinafter called the "Series [ ] Preferred Securities").
2. RANKING. The Series [ ] Preferred Securities shall, with
respect to periodic distribution rights and rights on dissolution, liquidation
or winding up, rank (i) pari passu with any other series of Preferred Securities
issued by the Company and (ii) prior to any other limited liability company
interests of the Company, including the Common Interests. So long as any Series
[ ] Preferred Securities are outstanding, the Company will not issue any limited
liability company interests ranking, as to periodic distribution rights or
rights upon dissolution, liquidation or winding up, senior to the Series [ ]
Preferred Securities.
3. PERIODIC DISTRIBUTIONS (DIVIDENDS). (a) The Holders of the
Series [ ] Preferred Securities shall be entitled to receive per annum, when, as
and if declared by the Company out of funds held by the Company and legally
available therefor, cumulative cash periodic distributions ("dividends") at the
annual rate of [ ]% of the sum of (i) the stated liquidation preference of [$
] per Series [ ] Preferred Security and (ii) if and for so long as any dividend
on the Series [] Preferred Securities is not paid in full for any monthly
dividend period on the payment date specified in this paragraph, the aggregate
accumulated and unpaid dividends per Series [] Preferred Security, and no more,
calculated on the basis of a 360-day year consisting of 12 months of 30 days
each, and for any period shorter than a full monthly dividend period, calculated
on the basis of the actual number of days elapsed in such period, and payable in
United States dollars monthly in arrears on the last day of each calendar month
of each year, commencing ________. Such dividends will accumulate and be
cumulative whether or not they have been declared and whether or not there are
profits, surplus or other funds of the Company legally
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available for the payment of dividends. Dividends on the Series [ ] Preferred
Securities shall be cumulative from the date of original issue. In the event
that any date on which dividends are payable on the Series [ ] Preferred
Securities is not a day on which banks in The City of New York are open for
business (a "Business Day"), then payment of the dividend payable on such date
may be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(b) Dividends on the Series [ ] Preferred Securities must be
declared by the Class A Interest Holder of the Company in any calendar year or
portion thereof to the extent that the Class A Interest Holder reasonably
anticipates that at the time of payment the Company will have, and shall be paid
by the Company to the extent that at the time of proposed payment it has, (x)
funds legally available for the payment of such dividends and (y) cash on hand
sufficient to permit such payment. Dividends declared on the Series [ ]
Preferred Securities will be payable to the Holders thereof as they appear on
the Register on the relevant record dates, which will be one Business Day prior
to the relevant payment dates. If dividends can be paid only in part on the
Series [ ] Preferred Securities in any calendar year or portion thereof as a
result of the lack of sufficient funds legally available for the payment of
dividends, then such partial dividends shall be paid on the respective dividend
payment dates on a pro rata basis to Holders of such Series [ ] Preferred
Securities. If at any time dividends on Series [ ] Preferred Securities are in
arrears for any monthly dividend period, any dividend payments in respect
thereof must be applied in respect of all dividend periods in arrears, pro rata
in accordance with the respective amounts in arrears for each such period in
equal amounts for each such period. If any dividends are not paid in full on
the payment dates specified, additional dividends will accumulate as specified
in (a) above.
4. REDEMPTION. (a) MANDATORY REDEMPTION. Upon any repayment
or permitted prepayment of principal on the Subordinated Debentures issued in
connection with the issuance of the Series [] Preferred Securities as
contemplated by Section 3.4 of the Agreement (the "Series [ ] Subordinated
Debentures"), the proceeds from such repayment of principal on the Series [ ]
Subordinated Debentures and related interest shall be applied to redeem the
Series [ ] Preferred Securities for cash at [$ ] per Series [ ] Preferred
Security, plus accumulated and unpaid dividends (whether or not declared) to the
redemption date (the "REDEMPTION PRICE"); PROVIDED that all or a portion of the
principal amount of Series [ ] Subordinated Debentures repaid at maturity may be
reloaned to Protective, and not used for redemption, if such new loan is
evidenced by a series of Subordinated Debentures (the "NEW SUBORDINATED
DEBENTURES") and at the time of the issuance of the New Subordinated Debentures,
and as determined in the judgment of Protective, as Class A Interest Holder, and
the Company's financial advisor (selected by the Class A Interest Holder, and
who shall be unaffiliated with Protective and shall be among the 30 largest
investment banking firms, measured by total capital, in the United States at the
time of the proposed new loan), (i) Protective is not the subject of a pending
case under the United States Bankruptcy Code, (ii) Protective is not in default
on any Subordinated Debentures, (iii) Protective has made all required monthly
payments of interest on all Subordinated Debentures for the immediately
preceding 18 months, (iv) the Company is not in arrears on payments of dividends
on any Preferred Securities, (v) Protective is expected to be able to make
timely payment of principal and interest on such new loan, (vi) such new loan is
being made on terms, and under circumstances, that are no less favorable than
those that a lender would require for a similar loan to an unrelated party,
(vii) such new loan is being made at a rate of interest at least equal to or
greater than the interest rate on the Series [ ] Subordinated Debentures, (viii)
such loan is being made for a fixed term that is consistent with market
circumstances and Protective's financial condition, (ix) the senior unsecured
long-term debt of Protective
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is rated not less than BBB- (or the equivalent) by Standard & Poor's Corporation
or Baa3 (or the equivalent) by Moody's Investors Services, Inc. (or if either of
such rating organizations is not then rating Protective's senior unsecured long-
term debt, the equivalent of such rating by any other "nationally recognized
statistical rating organization," as that term is defined by the Securities and
Exchange Commission for purposes of Rule 436(g)(2) under the Securities Act) and
any subordinated long-term debt of Protective or, if there is no such debt then
outstanding, the Series [ ] Preferred Securities, are rated not less than BBB-
(or the equivalent) by Standard & Poor's Corporation or Baa3 (or the equivalent)
by Moody's Investors Services, Inc. or the equivalent of either such rating by
any other "nationally recognized statistical rating organization", (x) such New
Subordinated Debentures will not be convertible or exchangeable into any equity
interest of or in Protective or any of its Affiliates, (xi) such New
Subordinated Debentures shall not pay any contingent or other interest
determined by reference to, or otherwise participate in, the earnings or profits
of Protective or any of its Affiliates; (xii) the interest payable on such new
loan will not exceed [175%] of the dividend rate on the Series [ ] Preferred
Securities and (xiii) the final maturity of such new loan is prior to the [50th]
anniversary of the issuance of the Series [ ] Preferred Securities. If, at the
maturity of the Series [ ] Subordinated Debentures, an amount less than the
entire principal amount of the Series [ ] Subordinated Debentures is to be
reloaned to Protective, the amount of such principal not reloaned shall be used
to effect a partial redemption of the Series [ ] Preferred Securities; PROVIDED
that, if such a partial redemption would result in a delisting of the Series [ ]
Preferred Securities, no amount of the principal may be so reloaned and the
Series [ ] Preferred Securities shall be redeemed in whole. In the event that
fewer than all of the outstanding Series [ ] Preferred Securities are to be
redeemed, the Series [ ] Preferred Securities to be redeemed shall be selected
in accordance with paragraph 5 hereof.
(b) OPTIONAL REDEMPTION. (i) The Series [ ] Preferred Securities
are redeemable for cash, at the option of the Company and subject to the
prior consent of Protective, in whole or in part from time to time, on or
after _________, upon not less than 30 nor more than 60 days' notice, at
the Redemption Price. If a partial redemption would result in a delisting
of the Series [ ] Preferred Securities from the New York Stock Exchange,
the Company may only redeem the Series [ ] Preferred Securities in whole.
(ii) Notwithstanding subparagraph (i) above, on or after the date of
issuance of the Series [ ] Preferred Securities, the Company may, at its
option, subject to the prior written consent of Protective, redeem the
Series [ ] Preferred Securities in whole (but not in part), upon not less
than 30 nor more than 60 days' notice given within 180 days after the
applicable change in U.S. law or regulation or written change in
interpretation of U.S. law or regulation referred to below, for cash at the
Redemption Price or in exchange for Subordinated Debentures having, at the
time of exchange, (A) an aggregate principal amount equal to the aggregate
stated liquidation preference of the Series [ ] Preferred Securities so
exchanged and (B) accrued and unpaid interest equal to any accumulated and
unpaid dividends (whether or not declared) at the date fixed for exchange
on the Series [ ] Preferred Securities so exchanged if the Company or
Protective shall have received an opinion of nationally recognized
independent counsel experienced in such matters to the effect that, as a
result of a change in U.S. law or regulation on or after ____________, or a
written change in interpretation or application of U.S. law or regulation,
by any legislative body, court or governmental agency or regulatory
authority (including the enactment of any legislation and the publication
of any judicial decision or regulatory determination) on or after such
date, the Company may be considered an "investment company" under the
Investment Company Act of 1940, as amended (the "1940 Act"); PROVIDED that
PLC Capital may not exchange the Series [ ] Preferred Securities for
Series [ ] Subordinated Debentures pursuant to the foregoing unless it
shall have obtained an opinion of independent nationally recognized tax
counsel experienced in such matters to the effect that holders of the
Series A Preferred Securities will not recognize gain or loss for federal
income tax purposes as a result of such exchange.
A-3
<PAGE>
(iii) Notwithstanding subparagraph (i) above, at any time after the
issuance of the Series [ ] Preferred Securities, upon not less than 30 nor
more than 60 days' notice given within 180 days after the applicable change
in U.S. law or regulation or written change in interpretation of U.S. law
or regulation referred to below, the Company may redeem the Series [ ]
Preferred Securities in whole (but not in part) in exchange for Series [ ]
Subordinated Debentures having, at the time of the exchange, (A) an
aggregate principal amount equal to the aggregate stated liquidation
preference of the Series [ ] Preferred Securities so exchanged and (B)
accrued and unpaid interest equal to any accumulated and unpaid dividends
(whether or not declared) at the date fixed for exchange on the Series [ ]
Preferred Securities so exchanged if Protective or the Company shall have
received an opinion of independent nationally recognized tax counsel
experienced in such matters to the effect that, as a result of a change in
U.S. law or regulation on or after ____________, or a written change in
interpretation or application of U.S. law or regulation, by any legislative
body, court or governmental agency or regulatory authority (including
enactment of any legislation and the publication of any judicial decision
or regulatory determination) on or after such date, there is more than an
insubstantial increase in the risk that (X) Protective will be precluded
from deducting the interest on the Series [ ] Subordinated Debentures for
Federal income tax purposes, (Y) the Company is subject to Federal income
tax with respect to the interest received on the Series [ ] Subordinated
Debentures or (Z) the Company is subject to more than a de minimis amount
of any other taxes, duties or other governmental charges; PROVIDED,
HOWEVER, that solely in the case of the event described in clause (Z)
above, the Company may not exchange the Series [ ] Preferred Securities for
Series [ ] Subordinated Debentures unless it shall have obtained an opinion
of independent nationally recognized tax counsel experienced in such
matters to the effect that Holders of the Series [ ] Preferred Securities
will not recognize gain or loss for Federal income tax purposes as a result
of such exchange. Furthermore, the Company shall have the right, upon not
less than 30 nor more than 60 days' notice given within 180 days after the
applicable change in U.S. law or regulation or written change in
interpretation of U.S. law or regulation referred to above to redeem the
Series [ ] Preferred Securities in whole (but not in part) for cash at the
Redemption Price if Protective shall have received an opinion of
independent nationally recognized tax counsel experienced in such matters
to the effect that, as a result of a change in law described above, there
exists more than an insubstantial increase in the risk that Protective will
be precluded from deducting the interest on the Series [ ] Subordinated
Debentures for Federal income tax purposes even if the Series [ ] Preferred
Securities were exchanged for the Series [ ] Subordinated Debentures as
described above.
(c) The Company may not redeem fewer than all the outstanding
Series [ ] Preferred Securities unless all accumulated and unpaid dividends have
been paid on all Series [ ] Preferred Securities for all monthly dividend
periods terminating on or prior to the date of redemption.
5. REDEMPTION PROCEDURE. (a) NOTICE OF REDEMPTION. Notice of
any redemption (a "Notice of Redemption") of the Series [ ] Preferred Securities
will be given by the Company by mail to each Holder of Series [ ] Preferred
Securities to be redeemed not fewer than 30 nor more than 60 days prior to the
date fixed for redemption thereof. For purposes of the calculation of the date
of redemption and the dates on which notices are given pursuant to this
paragraph 5(a), a Notice of Redemption shall be deemed to be given on the day
such notice is first mailed by first class mail, postage prepaid, to Holders of
the Series [ ] Preferred Securities. Each Notice of Redemption shall be
addressed to the Holder at the address of the Holder appearing in the Register.
Each Notice of Redemption shall state: (i) the redemption date; (ii) the
Redemption Price; (iii) if the Series [ ] Preferred Securities are represented
by
A-4
<PAGE>
Certificated Preferred Securities and less than all such Outstanding Series [ ]
Preferred Securities are to be redeemed, the identification of the particular
Series [ ] Preferred Securities to be redeemed and, if the Series [ ] Preferred
Securities are represented by a Global Preferred Security, the portion of the
Global Preferred Security to be redeemed; (iv) that on the redemption date the
Redemption Price will become payable with respect to each Series [ ] Preferred
Security to be redeemed and that dividends thereon will cease to accumulate on
and after said date; and (v) the identity of the Paying Agent, if any, and the
place or places where each Series [ ] Preferred Security is to be surrendered
for payment of the Redemption Price. No defect in the Notice of Redemption or
in the mailing thereof or publication of its contents shall affect the validity
of the redemption proceedings.
(b) REDEMPTION OF LESS THAN ALL SERIES [ ] PREFERRED SECURITIES.
In the event that the Series [ ] Preferred Securities are represented by
Certificated Preferred Securities and fewer than all the Outstanding Series [ ]
Preferred Securities are to be redeemed, the particular Series [ ] Preferred
Securities to be redeemed will be selected by the Class A Interest Holder from
the Outstanding Series [ ] Preferred Securities not previously called for
redemption, by such method as the Class A Interest Holder shall deem fair and
appropriate. If all Outstanding Series [ ] Preferred Securities are represented
by a Global Preferred Security, the Class A Interest Holder may provide for the
selection for redemption of a portion of such Global Preferred Security. Any
Series [ ] Preferred Security which is to be redeemed only in part shall be
surrendered with due endorsement by or a written instrument of transfer fully
executed by the Holder thereof (or his attorney duly authorized in writing) and
the Company shall prepare and deliver to such Holder, without service charge, a
new Series [ ] Preferred Security or Securities in aggregate stated liquidation
preference equal to, and in exchange for the unredeemed portion of, the Series [
] Preferred Security so surrendered.
(c) REDEMPTION FOR CASH. If the Company gives a Notice of
Redemption for cash at the Redemption Price in respect of Series [ ] Preferred
Securities, and if, on or before the redemption date specified therein, all
funds necessary for such redemption shall have been either (i) set aside by the
Company, separate and apart from its other funds or (ii) deposited by the
Company with the Paying Agent (which shall initially be AmSouth Bank, N.A.), in
each case in trust for the pro rata benefit of the Holders of the Series [ ]
Preferred Securities called for redemption, so as to be and continue to be
available therefor, then, notwithstanding that any certificate for Series [ ]
Preferred Securities so called for redemption shall not have been surrendered
for cancellation, all rights of Holders of such Series [ ] Preferred Securities
so called for redemption will cease, except the right of the Holders of such
Series [ ] Preferred Securities to receive the Redemption Price, but without
interest, and such Series [ ] Preferred Securities will cease to be Outstanding.
By 12:00 noon, New York time, on such redemption date, the Company will
either (x) irrevocably deposit with the Paying Agent, if any, funds sufficient
to pay the Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Series [ ] Preferred Securities to be redeemed or (y) pay the
Redemption Price to such Holders. Any funds so set aside or deposited, as the
case may be, and unclaimed at the end of three years from such redemption date
shall, to the extent permitted by law, be released or repaid to the Company,
after which repayment the Holders of the Series [ ] Preferred Securities so
called for redemption shall look only to the Company for payment thereof. In
the event that any date fixed for redemption of Series [ ] Preferred Securities
is not a Business Day, then payment of the Redemption Price payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day. In the event that payment
of the Redemption Price in respect of Series [ ] Preferred Securities is
improperly withheld or refused and not paid either by the Company or by
Protective pursuant to the Guarantee Agreement, dated ________, between
Protective and the Company
A-5
<PAGE>
(the "Guarantee Agreement"), dividends on such Series [ ] Preferred Securities
will continue to accumulate at the then applicable rate, from the original
redemption date to the date of payment in which case the actual payment date
will be considered the date fixed for redemption for purposes of calculating the
Redemption Price.
(d) REDEMPTION IN EXCHANGE FOR SERIES [ ] SUBORDINATED
DEBENTURES. In the event of an exchange pursuant to paragraph 4(b), after the
date fixed for any such exchange, (i) the Series [ ] Preferred Securities will
no longer be deemed to be outstanding, (ii) if the Series [ ] Preferred
Securities are represented by a Global Preferred Security, the Depositary or its
nominee, as the record Holder of the Series [ ] Preferred Securities, will
exchange the global certificate or certificates representing the Series [ ]
Preferred Securities for a registered global certificate or certificates
representing the Series [ ] Subordinated Debentures to be delivered upon such
exchange, (iii) if the Series [ ] Preferred Securities are represented by
Certificated Preferred Securities, any certificates representing Series [ ]
Preferred Securities not held by the Depositary or its nominee will be deemed to
represent Series [ ] Subordinated Debentures having a principal amount equal to
the aggregate stated liquidation preference of such Series [ ] Preferred
Securities until such certificates are presented to the Company or its agent for
exchange and (iv) all rights of the Holders of the Series [ ] Preferred
Securities so exchanged will cease, except for the right of such Holders to
receive Series [ ] Subordinated Debentures. If the Series [ ] Preferred
Securities are exchanged for Series [ ] Subordinated Debentures, Protective
agrees to use its best efforts to have the Series [ ] Subordinated Debentures
listed on the same exchange, if any, on which the Series [ ] Preferred
Securities were, prior to the exchange, listed.
6. VOTING RIGHTS. (a) The Series [ ] Preferred Securities
shall not have general voting rights but shall have the rights set forth in this
paragraph 6. If (i) the Company shall have failed to pay dividends in full on
the Series [ ] Preferred Securities for 18 monthly dividend periods (whether or
not there are legally available funds); (ii) Protective breaches any of its
obligations under the Series [ ] Subordinated Debentures or the Subordinated
Indenture relating thereto (or an Event of Default (as defined in the Series [ ]
Subordinated Debentures) under the Series [ ] Subordinated Debentures has
occurred and is continuing); or (iii) Protective breaches any of its payment or
other obligations under the Guarantee Agreement, then the Holders of the
outstanding Series [ ] Preferred Securities, together with the Holders of any
other preferred or preference limited liability company interests in the Company
having the right to vote for the appointment of a trustee in such event, acting
as a single class, will be entitled, by vote or consent as described in the
Agreement, to appoint and authorize a trustee to enforce the Company's rights as
a creditor under the Series [ ] Subordinated Debentures against Protective
(including the acceleration of principal and accrued interest on the Series [ ]
Subordinated Debentures), enforce the obligations undertaken by Protective under
the Guarantee Agreement and declare and pay dividends on the Series [ ]
Preferred Securities to the extent that funds are held by the Company and
legally available therefor. For purposes of determining whether the Company has
failed to pay dividends in full for 18 monthly dividend periods, dividends shall
be deemed to remain in arrears, notwithstanding any payments in respect thereof,
until full cumulative dividends have been or contemporaneously are declared and
paid with respect to all monthly dividend periods terminating on or prior to the
date of payment of such full cumulative dividends. Not later than 30 days after
such right to appoint a trustee arises, the Class A Interest Holder will convene
a separate general meeting of Holders of preferred or preference limited
liability company interests in the Company entitled to vote for such appointment
for the above purpose. If the Class A Interest Holder fails to convene a
general meeting within such 30-day period, the Holders of 10% in stated
liquidation preference (plus all accumulated and unpaid dividends per limited
liability company interest) of the outstanding Series [ ] Preferred Securities
and such other preferred or preference limited liability company interests will
be entitled to convene such meeting. The
A-6
<PAGE>
provisions of the Agreement relating to the convening and conduct of the general
meetings of Members will apply with respect to any such meeting. Any trustee so
appointed shall vacate office, subject to the terms of such other preferred or
preference limited liability company interests, immediately if the Company (or
Protective pursuant to the Guarantee Agreement) shall have paid in full all
accumulated and unpaid dividends on the Series [ ] Preferred Securities or such
default or breach by Protective, as the case may be, shall have been cured.
(b) If any resolution is proposed for adoption by the Members of
the Company providing for, or the Class A Interest Holder or the Company
otherwise proposes to effect, (w) the amendment or alteration of the Agreement
(as amended by this Action) so as to adversely affect any rights or powers of
the Series [ ] Preferred Securities or the Holders thereof or result in the
authorization or issuance of any limited liability company interests of the
Company ranking, as to dividends or upon dissolution, liquidation or winding-up
of the Company, senior to the Series [ ] Preferred Securities, (x) the
dissolution, liquidation or winding up of the Company, (y) the waiver of any
rights of the Company under the Series [ ] Subordinated Debentures or allow the
repurchase or repayment of the Series [ ] Subordinated Debentures prior to
_________, 1999 (unless (i) there is an Event of Default specified in Section
5.1(5) or 5.1(6) of the Subordinated Indenture relating thereto, or there is any
other Event of Default thereunder and such Series [] Subordinated Debentures are
accelerated pursuant to the request of the Holders of 25% or more of the Series
[ ] Preferred Securities or of a trustee appointed by the Holders of Series [ ]
Preferred Securities as contemplated in the preceding paragraph or (ii) in
connection with a redemption described in Section 4(b) hereof) or (z) the
modification of any of Sections 2.7, 3.3, 6.2 and 7.1 of the Agreement, then the
Holders of outstanding Series [ ] Preferred Securities (and, in the case of a
resolution described in clause (w) above which would equally adversely affect
the rights, preferences or privileges of any Dividend Parity Securities or any
Liquidation Parity Securities, such Dividend Parity Securities or such
Liquidation Parity Securities, as the case may be, or, in the case of any
resolution described in clause (x) or (z) above, all Liquidation Parity
Securities) will be entitled to vote together as a class on such resolution or
action of the Class A Interest Holder (but not on any other resolution or
action), and such resolution or action shall not be effective except with the
approval of the Holders of 66-2/3% in aggregate liquidation preference (plus all
accumulated and unpaid dividends) of such outstanding Preferred Securities.
(c) No vote or consent of the Holders of the Series [ ] Preferred
Securities will be required for the Company to redeem and cancel Series [ ]
Preferred Securities in accordance with the Agreement (as amended by this
Action).
(d) Holders of Series [ ] Preferred Securities have no preemptive
rights.
(e) Notwithstanding that Holders of Series [ ] Preferred
Securities are entitled to vote or consent under any of the circumstances
described above, any of the Series [ ] Preferred Securities and any such other
preference limited liability company interests entitled to vote with such Series
[ ] Preferred Securities as a single class outstanding at such time that are
owned by Protective or any Affiliate thereof, either directly or indirectly,
shall not be entitled to vote or consent and shall, for the purposes of such
vote or consent, be treated as if they were not Outstanding.
7. BOOK-ENTRY-ONLY ISSUANCE; THE DEPOSITORY TRUST COMPANY. The
Depository Trust Company ("DTC"), New York, New York, will act as the Depositary
for the Series [ ] Preferred Securities. The Series [ ] Preferred Securities
will initially be issued only in the form of one or more fully-registered global
securities representing in the aggregate the total number of Series [ ]
Preferred
A-7
<PAGE>
Securities and registered in the name of Cede & Co. (DTC's nominee) and
substantially in the form of Annex B to the Agreement.
DTC may discontinue providing its services as securities
depository with respect to the Series [ ] Preferred Securities at any time by
giving reasonable notice to the Company as provided in the agreement between the
Company and DTC.
IN WITNESS WHEREOF, the Class A Interest Holder has executed this
Action as of the ____ day of _________, 1994.
By: PROTECTIVE LIFE CORPORATION,
as Class A Interest Holder
By:
-----------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
A-8
<PAGE>
ANNEX B
[INCLUDE IF CERTIFICATE IS A GLOBAL CERTIFICATE DEPOSITED WITH
THE DEPOSITORY TRUST COMPANY -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN THE
DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO., OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 7.4 OF THE AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT REFERRED TO BELOW.]
[INCLUDE IN ALL CERTIFICATES -- THIS CERTIFICATE IS TRANSFERABLE
ONLY UPON COMPLIANCE WITH CERTAIN PROVISIONS OF THE AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT OF PLC CAPITAL L.L.C. DATED AS OF MAY 20, 1994. BY
ACCEPTANCE OF THIS CERTIFICATE, WHETHER UPON ORIGINAL ISSUANCE OR SUBSEQUENT
TRANSFER, EACH HOLDER OF THIS CERTIFICATE AGREES THAT IT SHALL TRANSFER THIS
CERTIFICATE ONLY AS PROVIDED IN SUCH AGREEMENT.]
- - - --------------------------------------------------------------------------------
Certificate Number Number of Preferred Securities
- - - --------------------------------------------------------------------------------
1
- - - --------------------------------------------------------------------------------
CUSIP NO.
----------
Certificate Evidencing Preferred Securities
of
PLC CAPITAL L.L.C.
__ Cumulative Monthly Income Preferred Securities, Series [ ]
(liquidation preference [$ ] per Preferred Security)
PLC Capital L.L.C., a limited liability company formed under the
laws of the State of Delaware (the "COMPANY"), hereby certifies that
(the "HOLDER") is the registered owner of
B-1
<PAGE>
_________ (_______) Preferred Securities, representing preferred limited
liability company interests in the Company, designated the __ Cumulative
Monthly Income Preferred Securities, Series [ ] (liquidation preference [$ ]
per Preferred Security) (the "SERIES [ ] PREFERRED SECURITIES") transferable on
the books and records of the Company, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer. The rights, preferences and limitations of the Series [ ]
Preferred Securities are set forth in, and this Certificate and the Series [ ]
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Limited
Liability Company Agreement of the Company dated as of May 20, 1994, as the same
may from time to time be amended (the "LIMITED LIABILITY COMPANY AGREEMENT"),
and the Action authorizing the issuance of the Series [ ] Preferred Securities
and determining the powers, preferences and other special rights and
restrictions, regarding dividends, voting, redemption, exchange, return of
capital and otherwise, and other matters relating to the Series [ ] Preferred
Securities. The Company or the Registrar and Transfer Agent will furnish a copy
of the Limited Liability Company Agreement and such Action to the Holder without
charge upon written request to the Company at its registered office.
Capitalized terms used herein but not defined shall have the meaning given them
in the Limited Liability Company Agreement. The Holder is entitled to the
benefits of the Guarantee Agreement of Protective Life Corporation, dated
, 1994 relating to the Preferred Securities (the "Guarantee") and to the
subordinated debentures (the "Series [ ] Subordinated Debentures") issued by
Protective Life Corporation to the Company pursuant to the Subordinated
Indenture, dated , 1994 between Protective Life Corporation and
AmSouth Bank N.A., as trustee (the "Subordinated Indenture") to the extent
provided therein and is entitled to enforce the rights of the Company under the
Subordinated Indenture to the extent provided therein and in the Limited
Liability Company Agreement. The Company will furnish a copy of such Guarantee
and Subordinated Indenture to the Holder without charge upon written request to
the Company at its principal office.
The Holder, by accepting this Certificate, is deemed to have (i)
agreed that the Series [ ] Subordinated Debentures are subordinate and junior in
right of payment to all Senior Indebtedness as and to the extent provided in the
Subordinated Indenture and (ii) agreed that the Guarantee is pari passu with the
Series [ ] Subordinated Debentures and subordinate and junior in right of
payment to all Senior Indebtedness as and to the extent provided in the
Guarantee. Upon issuance or acquisition of this Series []
Preferred Security in accordance with Article III and Article VII of the Limited
Liability Company Agreement, the Holder hereof is
admitted to the Company as a Member of the Company, is bound by the terms of the
Limited Liability Company Agreement and is entitled to the benefits thereunder.
B-2
<PAGE>
IN WITNESS WHEREOF, this certificate has been signed on behalf of the
Company by the Class A Interest Holder and countersigned by a duly authorized
officer of each of Protective Life Corporation, as Guarantor and AmSouth Bank
N.A., as Paying Agent.
PLC CAPITAL L.L.C.
By PROTECTIVE LIFE CORPORATION,
as Class A Interest Holder
------------------------
By:
Title:
PROTECTIVE LIFE CORPORATION,
as Guarantor
------------------------
By:
Title:
AMSOUTH BANK, N.A.,
as Paying Agent
------------------------
By:
Title:
B-3
<PAGE>
Draft--May 24, 1994
- - - -------------------------------------------------------------------------------
PROTECTIVE LIFE CORPORATION
to
AMSOUTH BANK N.A., as Trustee
--------------------------------
SUPPLEMENTAL INDENTURE No. 1
Dated as of , 1994
-----------
----------------------------
Series of
% Subordinated Debentures
Due May __, 2024, Series A
$
- - - -------------------------------------------------------------------------------
<PAGE>
PROTECTIVE LIFE CORPORATION
SUPPLEMENTAL INDENTURE No. 1
$ ___________________
____% Subordinated Debentures
Due May __, 2024, Series A
SUPPLEMENTAL INDENTURE No. 1, dated as of _____, 1994, from PROTECTIVE
LIFE CORPORATION, a Delaware corporation (the "Company"), to AMSOUTH BANK N.A.,
a national banking corporation, as trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the Trustee a
Subordinated Indenture, dated as of _______, 1994 (the "Indenture"), providing
for the issuance from time to time of series of the Company's Securities.
Section 3.1 of the Indenture provides for various matters with respect
to any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture.
For and in consideration of the premises and the issuance of the
series of Securities provided for herein, it is mutually covenanted and agreed
as follows for the equal and ratable benefit of the Holders of the Securities of
such series:
ARTICLE 1
Relation to Indenture; Definitions
Section 1.1. This Supplemental Indenture No. 1 constitutes an
integral part of the Indenture.
<PAGE>
Section 1.2. For all purposes of this Supplemental Indenture No. 1:
(1) Capitalized terms used herein without definition shall have the
meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supple-
mental Indenture No. 1; and
(3) The terms "herein", "hereof", "hereunder" and other words of
similar import refer to this Supplemental Indenture No. 1.
ARTICLE 2
The Series of Securities
Section 2.1. TITLE OF THE SECURITIES. There shall be a series of
Securities designated the "_____% Subordinated Debentures Due May __, 2024,
Series A" (the "Securities").
Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF
SECURITIES. The aggregate principal amount of the Securities shall be limited
to $_______________. Each Security shall be dated the date of its
authentication.
Section 2.3. PRINCIPAL PAYMENT DATES. The principal amount of the
Securities Outstanding (together with any accrued and unpaid interest thereon)
shall be payable in a single installment on May __, 2024.
Section 2.4. INTEREST AND INTEREST RATES. The rate of interest on
each Security shall be ____% per annum, accruing from ______, 1994 and, subject
to Section 2.5, interest shall be payable, in arrears, on the last day of each
calendar month of each year (each an "Interest Payment Date"), commencing
May __, 1994. The amount of interest payable on any Interest Payment Date shall
be computed on the basis of twelve 30-day months and a 360-day year and, for
any period that is shorter than a full calendar month, will be calculated on
the basis of the actual number of days elapsed in such period. In the event
that any date on which interest is payable on a Security is not a Business
Day, then pay-
2
<PAGE>
ment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest so payable on any Security which is punctually paid
or duly provided for on any Interest Payment Date shall be paid to the Person in
whose name such Security is registered at the close of business on the Regular
Record Date for such Interest Payment Date, which, for purposes of this
Supplemental Indenture No. 1, shall be the Business Day preceding such Interest
Payment Date. The interest so payable on any Security which is not punctually
paid or duly provided for on any Interest Payment Date shall forthwith cease to
be payable to the Person in whose name such Security is registered on the
relevant Regular Record Date, and such defaulted interest shall instead be
payable to the Person in whose name such Security is registered on the special
record date or other specified date determined in accordance with the Indenture.
Section 2.5. EXTENSION OF INTEREST PAYMENT PERIOD. Notwithstanding
anything contained herein or in the Indenture to the contrary, the Company shall
have the right at any time or times during the term of the Securities, so long
as the Company is not in default in the payment of interest on the Securities,
to extend the period to the next Interest Payment Date by one or more monthly
periods (not to exceed 60 months from the last date on which interest was paid
in full), at the end of which period the Company shall pay all interest then
accrued and unpaid (compounded monthly to the extent permitted by applicable
law); PROVIDED that, during any such extended Interest Payment Period or at any
time during which there is an uncured Default or Event of Default under the
Securities, the Company shall not pay any dividends on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its shares of
capital stock or make any guarantee payments with respect to the foregoing,
other than (a) redemptions or purchases pursuant to the Company's share
purchase rights plan established under its Rights Agreement, dated
July 17, 1987, as amended (the "Share Purchase Rights Plan", which term
includes any successor to such plan) and (b) payments under the guarantee
(the "Guarantee") of the [__]% Cumulative Monthly Income Preferred Securities,
Series A (the "Series A Preferred Securities") issued by PLC Capital L.L.C
("PLC Capital"), a Delaware limited liability company, or any other series of
preferred limited
3
<PAGE>
liability company interests in PLC Capital ranking PARI PASSU with the Series A
Preferred Securities. The Company shall give the Holders of the Securities not
less than five Business Days' prior notice of its selection of an extended
Interest Payment Period pursuant to this Section 2.5.
Section 2.6. PLACE OF PAYMENT. The Place of Payment where the
Securities may be presented or surrendered for payment, where the Securities may
be surrendered for registration of transfer or exchange and where notices and
demands to and upon the Company in respect of the Securities and the Indenture
may be served shall be the Corporate Trust Office of the Trustee.
Section 2.7. PREPAYMENT.
(a) MANDATORY PREPAYMENT. If PLC Capital redeems Series A Preferred
Securities in cash in accordance with the terms thereof, the Securities will
become due and payable in a principal amount equal to the aggregate stated
liquidation preference of the Series A Preferred Securities so redeemed
(together with accrued interest on such principal amount to the date set for
redemption) (the "Redemption Payment"). Such Redemption Payment shall be made
at the Place of Payment prior to 12:00 noon, New York time, on such redemption
date. In addition, the principal amount of the Securities (together with any
accrued and unpaid interest thereon) will become due and payable in the event of
the dissolution, winding-up or liquidation of PLC Capital.
(b) OPTIONAL PREPAYMENT. The Securities may be prepaid upon not less
than 30 days' notice by mail, at any time on or after __________, 1999, in whole
or in part, at the election of the Company, together with any accrued but unpaid
interest to the date set for prepayment.
Section 2.8. CERTAIN ADDITIONAL TERMS. So long as the Holder of the
Securities is PLC Capital, under certain circumstances, the Company may cause
PLC Capital to exchange, with the holders of Series A Preferred Securities, its
Series A Preferred Securities for the Securities. Upon any such exchange, (i)
---
the Securities will no longer be subject to mandatory prepayment upon the
dissolution, winding-up or liquidation of PLC Capital, (ii) the Company will
----
use its best efforts to have the Securities listed on
4
<PAGE>
the same exchange on which the Series A Preferred Securities are listed and
(iii) the Indenture, this Supplemental Indenture No. 1 and the terms of the
- - - -----
Securities may, thereafter, be modified or amended with the consent of not
less than 66-2/3% in principal amount of the Securities at any time
outstanding, PROVIDED, however, that no such modification or amendment may,
without the consent of the Holders of each Security affected thereby,
(a) extend the stated maturity of the principal of any Security, or reduce the
- - - ---
principal amount thereof or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof or change
the currency in which the principal thereof or interest thereon is payable or
impair the right to institute suit for the enforcement of any payment on any
Security when due or (b) reduce the aforesaid principal amount of Securities
---
the consent of the Holders of which is required for any such modification.
Section 2.9. CERTAIN SET-OFF RIGHTS OF THE COMPANY. Notwithstanding
anything to the contrary in the Indenture, the Company may set-off any payment
it is otherwise required to make under the Securities with and to the extent the
Company has theretofore made, or is concurrently on the date of such payment
making, a payment under the Guarantee.
Section 2.10. ADDITIONAL COVENANTS. The Company agrees that so long
as the Series A Preferred Securities are outstanding: (i) it shall not declare
---
or pay any dividend on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock, or make any guarantee
payments with respect to the foregoing (other than (a) redemptions or purchases
---
pursuant to the Company's Share Purchase Rights Plan and (b) payments under the
---
Guarantee or under any other guarantee of any other series of Preferred
Securities ranking PARI PASSU with the Series A Preferred Securities) if at such
time (x) there shall have occurred any Event of Default or Default or (y) the
--- ---
Company shall be in default with respect to its payment or other obligations
under the Guarantee; (ii) it shall maintain ownership, directly or indirectly,
----
of all of the Common Securities; and (iii) it shall timely perform all of its
-----
respective duties under the Amended and Restated Limited Liability Company
Agreement of PLC Capital (the "L.L.C. Agreement").
The Company also agrees (i) that its obligations under the Securities
---
will also be the benefit of the holders from time to time of the Series A
Preferred Securities and
5
<PAGE>
that such holders or a trustee acting on behalf of such holders will be entitled
to enforce the Securities directly against the Company as third party
beneficiaries of the Company's obligations thereunder, and (ii) not to
----
consolidate with or merge into another entity or permit another entity to
consolidate with or merge into it unless (a) at such time no default or Event of
---
Default has occurred and is continuing, or would occur as a result of such
merger and (b) the Company is the survivor of such merger or the entity formed
---
by or resulting from such merger shall expressly assume payment of the principal
of and premium, if any, and interest on the Securities.
Section 2.11. DENOMINATION. The Securities shall be issuable in
denominations of $25 and integral multiples thereof.
Section 2.12. CURRENCY. Principal and interest on the Securities
shall be payable in Dollars.
Section 2.13. REGISTERED SECURITIES. The Securities shall be issued
as Registered Securities, without coupons and shall be registered in the name
of PLC Capital and its permitted registered assigns.
Section 2.14. FORM OF SECURITIES. The Securities shall be
substantially in the form attached as Exhibit A hereto.
Section 2.15. DEFEASANCE AND COVENANT DEFEASANCE. The provisions of
Sections 4.4 and 4.5 of the Indenture shall apply to the Securities.
Section 2.16. REGISTRAR AND PAYING AGENT. The Trustee shall
initially serve as Registrar and Paying Agent.
Section 2.17. ADDITIONAL PROVISIONS REGARDING AMENDMENTS. So long as
the Holder of the Securities is PLC Capital, the terms of the Securities may be
amended by mutual consent of the Company and PLC Capital in the manner they
shall agree; PROVIDED, HOWEVER, that, so long as any of the Series A Preferred
Securities remain outstanding, no such amendment shall be made that adversely
affects the holders of the Series A Preferred Securities, no termination of the
Securities shall occur, and no event of Default or compliance with any covenant
under the Securities may be waived by PLC Capital, without the prior approval
of the holders of at least 66-2/3% in liquidation preference of all
6
<PAGE>
Series A Preferred Securities then outstanding, in writing or at a duly
constituted meeting of such holders.
Section 2.18. ADDITIONAL PROVISIONS REGARDING ASSIGNMENT. The
Company shall have the right at all times to assign any of its rights or
obligations under the Securities to a direct or indirect wholly-owned subsidiary
of the Company; PROVIDED, HOWEVER, that, in the event of any such assignment,
the Company shall remain jointly and severally liable for all such obligations.
PLC Capital may not assign any of its rights under the Securities, other than
in connection with a merger or consolidation or sale of assets or exchange
permitted under the terms of the Series A Preferred Securities. Any assignment
by the Company or PLC Capital in contravention of such provisions will be null
and void.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. The Indenture, as supplemented and amended by this
Supplemental Indenture No. 1, is in all respects hereby adopted, ratified and
confirmed.
Section 3.2. This Supplemental Indenture No. 1 may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 3.3. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
[Intentionally Blank]
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 1 to be duly executed, as of the day and year first written above.
PROTECTIVE LIFE CORPORATION
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
[Seal]
Attest: _______________________
Name:
Title:
AMSOUTH BANK N.A.,
Trustee
By: _______________________
Name:
Title:
[Seal]
Attest: _______________________
Name:
Title:
8
<PAGE>
Draft -- May 24, 1994
Exhibit A to
Supplemental Indenture No. 1
[FORM OF FACE OF SERIES A SUBORDINATED DEBENTURE]
THIS SERIES A SUBORDINATED DEBENTURE IS REGISTERED IN THE NAME OF PLC CAPITAL
L.L.C. AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF OTHER THAN AS
PERMITTED IN THE SUPPLEMENTAL INDENTURE NO. 1 DATED AS OF _________, 1994, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY
PROTECTIVE LIFE CORPORATION
__% Subordinated Debentures
Due May __, 2024, Series A
No. ___
CUSIP No.___ $____
PROTECTIVE LIFE CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to __________________ or permitted
registered assigns, the principal sum of _______________________ Dollars on
May_, 2024 and to pay interest thereon from _________, 1994. Interest shall be
payable on this Subordinated Debenture, in arrears, on the last day of each
calendar month of each year (each an "Interest Payment Date") commencing
May ___, 1994, at the rate of __% per annum, until the principal hereof is
paid or made available for payment; PROVIDED that, notwithstanding
anything contained in the Indenture and the Supplemental Indenture No. 1 to the
contrary, the Company shall have the right at any time during the term of this
Security, so long as the Company is not in default in the payment of interest
on this Security, to extend the period to the next Interest Payment Date by one
or more monthly periods (not to exceed 60 months from the last date on which
interest was paid in full) at the end of which period the Company shall pay all
interest then accrued and unpaid (compounded monthly to the extent permitted by
applicable law); PROVIDED FURTHER, that, during any such extended Interest
Payment Period or at any time during which there is an uncured Default or Event
of Default under this Subordinated Debenture, the Company shall comply with the
covenants set forth in the Supplemental Indenture No. 1 relating to such
extended Interest Payment Period. The Company shall give the holders of this
Subordinated Debenture not less than five Business Days' prior notice of its
selection of such extended interest payment period.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period that is shorter
<PAGE>
than a full calendar month, will be calculated on the basis of the actual number
of days elapsed in such period. In the event that any date on which interest is
payable on this Security is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest so payable
on any Interest Payment Date which is punctually paid or duly provided for on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Subordinated Debenture
is registered at the close of business on the Regular Record Date for such
Interest Payment Date, which shall be the Business Day next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the person in whose name this
Security is registered on the relevant Regular Record Date, and such defaulted
interest shall instead be payable to the person in whose name this Subordinated
Debenture is registered on the special record date or other specified date
determined in accordance with the Indenture and the Supplemental Indenture No. 1
referred to on the reverse hereof.
Payment of the principal of and any such interest on this Subordinated
Debenture will be made at the Corporate Trust Office of the Trustee, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, PROVIDED, HOWEVER, that at
the option of the Company payment of interest may be paid (i) by check mailed to
the address of the person entitled thereto as such address shall appear in the
Register of Holders of the Subordinated Debentures or (ii) by wire transfer to
an account maintained by the Person entitled thereto as specified in the
Register of Holders of the Securities.
Reference is hereby made to the further provisions of this
Subordinated Debenture set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Subordinated Debenture shall
2
<PAGE>
not be entitled to any benefit under the Indenture and the Supplemental
Indenture No. 1 referred to on the reverse hereof or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PROTECTIVE LIFE CORPORATION
By
---------------------------
By
---------------------------
[CORPORATE SEAL]
This is one of the Securities of the series described in the within-
mentioned Indenture.
AMSOUTH BANK N.A., as Trustee
By
---------------------------
Authorized Signatory
3
<PAGE>
[FORM OF REVERSE OF SERIES A SUBORDINATED DEBENTURE]
This Subordinated Debenture is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under a Subordinated Indenture, dated as of ______,
1994 (herein called the "Indenture"), from the Company to AmSouth Bank N.A.
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $_________ and is issued pursuant to Supplemental
Indenture No. 1, dated as of __________, 1994 from the Company to the Trustee,
relating to the Securities of this series.
The indebtedness evidenced by this Security is to the extent provided
in the Indenture, subordinate and junior in right of payment to all Senior
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
The Securities of this series are subject to redemption upon not less
than 30 days' notice by mail, at any time on or after ______________, 1999, in
whole or in part, at the election of the Company, together with accrued interest
to the Redemption Date. The Securities of this series are also subject to
mandatory redemption in accordance with the terms set forth in Supplemental
Indenture No. 1.
4
<PAGE>
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance and covenant
defeasance at any time of the indebtedness on this Security upon compliance by
the Company with certain conditions set forth therein, which provisions apply to
this Security.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities at the time outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to waive
certain existing defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of the Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture or to Supplemental Indenture No.
1 and no provision of this Security or of the Indenture or of Supplemental
Indenture No. 1 shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and interest on, this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable in the Register,
upon surrender of
5
<PAGE>
this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company, the Trustee and the Registrar duly executed by
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the person in whose name this Security is registered as the owner
hereof for all purposes, whether or not the Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
----------------------
6
<PAGE>
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
May 25, 1994
Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35202
PLC Capital L.L.C.
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35202
Protective Life Corporation
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Protective Life Corporation, a
Delaware corporation ("Protective Life"), and PLC Capital L.L.C., a Delaware
limited liability company ("PLC Capital"), 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 (Registration No. 33-52831), as amended (the "Registration
Statement"), relating to the public offering of up to $175,000,000 in the
aggregate of (i) debt securities representing unsecured obligations of
Protective Life (the
<PAGE>
Protective Life Corporation 2 May 25, 1994
PLC Capital, L.L.C.
"Senior Debt Securities") to be issued pursuant to a Senior Indenture (the
"Senior Indenture") to be entered into between Protective Life and The Bank of
New York, as trustee (the "Senior Trustee") and subordinated debt securities
("Subordinated Debt Securities") to be issued pursuant to a
Subordinated Indenture (the "Subordinated Indenture") to be entered into
between Protective Life and AmSouth Bank N.A., as trustee (the "Subordinated
Trustee"), (ii) shares of preferred stock of Protective Life, par value $1.00
per share ("Preferred Stock"), and (iii) [ ] Cumulative Monthly Income
Preferred Securities (the "Preferred Securities"), in one or more series,
representing preferred limited liability company interests of PLC Capital.
The proceeds of the offering of Preferred Securities (together with proceeds
from the issuance of common limited liability company interests in
PLC Capital and related capital contributions) may be loaned by PLC Capital to
Protective Life and such loan may be evidenced by Subordinated Debt Securities.
In addition, certain payment obligations of PLC Capital with respect to the
Preferred Securities will be guaranteed by a subordinated guarantee (the
"Guarantee") of Protective Life pursuant to the Guarantee Agreement to be
executed by Protective Life for the benefit of holders of Preferred Securities
from time to time.
In so acting, we have examined and relied upon the originals, or
copies certified or otherwise identified to our satisfaction, of such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below.
Based upon the foregoing, we are of the following opinion:
1. Protective Life is validly existing as a corporation in good
standing under the laws of the State of Delaware.
2. PLC Capital is validly existing as a limited liability company in
good standing under the Delaware Limited Liability Company Act (6 Del.C.
Section 18-101, et seq.) (the "Act").
<PAGE>
Protective Life Corporation 3 May 25, 1994
PLC Capital, L.L.C.
3. The execution and delivery of the Senior Indenture and the Senior
Debt Securities have been duly authorized by Protective Life. When the
Senior Indenture has been duly executed and delivered by Protective Life
and the Senior Trustee and the Senior Debt Securities have been duly
executed, authenticated, issued, delivered and paid for as contemplated by
the Registration Statement and any prospectus supplement relating thereto
and in accordance with the Senior Indenture, assuming the terms of such
Debt Securities are in compliance with then applicable law, the Senior
Debt Securities will be validly issued and will constitute valid and
binding obligations of Protective Life enforceable against Protective Life
in accordance with their terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability relating to or affecting the rights of creditors and
to general equity principles (whether considered in a proceeding at law or
in equity).
4. The execution and delivery of the Subordinated Indenture and the
Subordinated Debt Securities have been duly authorized by Protective
Life. When the Subordinated Indenture has been duly executed and
delivered by Protective Life and the Subordinated Trustee and the
Subordinated Debt Securities have been duly executed, authenticated,
issued, delivered and paid for as contemplated by the Registration
Statement and any prospectus supplement relating thereto and in
accordance with the Subordinated Indenture, assuming the terms of such
Subordinated Debt Securities are in compliance with then applicable law,
the Subordinated Debt Securities will be validly issued and will
constitute valid and binding obligations of Protective Life enforceable
against Protective Life in accordance with their terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws of general applicability relating to or affecting the
rights of creditors and to general equity principles (whether considered
in a proceeding at law or in equity).
5. The Preferred Stock has been duly authorized by Protective Life.
When (i) the terms of the Preferred Stock and of their issuance and sale
have been duly established in conformity with Protective
<PAGE>
Protective Life Corporation 4 May 25, 1994
PLC Capital, L.L.C.
Life's Restated Certificate of Incorporation, as amended, so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon Protective Life and so as to comply
with any requirement or restriction imposed by any court or governmental
body having jurisdiction over Protective Life, (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 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.
6. Upon (i) completion and due execution of the written action (the
"Action") establishing the terms of the Preferred Securities of any series
by Protective Life, as the Class A Interest Holder (as defined in the
Amended and Restated Limited Liability Company Agreement, dated as of May
20, 1994 (the "LLC Agreement"), of PLC Capital), (ii) the issuance of and
payment for the Preferred Securities of such series as contemplated by the
LLC Agreement, the Action and the Registration Statement and (iii) the
reflection on the books and records of PLC Capital of all the information
required by the LLC Agreement and the Act, the Preferred Securities will be
valid and, subject to the qualifications set forth herein, fully paid and
nonassessable limited liability company interests in PLC Capital, as to
which holders of the Preferred Securities, in their capacities as such,
will have no liability solely by reason of being holders of the Preferred
Securities in excess of their obligations to make payments provided for in
the LLC Agreement and their share of PLC Capital's assets and undistributed
profits (subject to the obligation of a holder of a Preferred Security to
repay any funds wrongfully distributed to it).
7. The execution and delivery of the Guarantee Agreement have been
duly authorized by Protective Life. When (i) the terms of the Guarantee
Agreement have been duly established so as not to violate any applicable
law or result in a default under or breach of any
<PAGE>
Protective Life Corporation 5 May 25, 1994
PLC Capital, L.L.C.
agreement or instrument binding upon Protective Life and so as to comply
with any requirement or restriction imposed by any court or governmental
body having jurisdiction over Protective Life, (ii) the Guarantee Agreement
has been duly executed and delivered and (iii) the Preferred Securities to
which the Guarantee Agreement relates have been duly issued and sold and
the purchase price therefor has been received by PLC Capital, the Guarantee
Agreement will constitute a valid and legally binding obligation of
Protective Life, enforceable against Protective Life in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the rights of creditors and to general equity principles (whether
considered in a proceeding in equity or at law).
To the extent the foregoing opinion in paragraph (6) involves matters
of Delaware law, we have relied upon the opinion, dated the date hereof, of
Richards, Layton & Finger, P.A., a copy of which is also filed as an Exhibit to
the Registration Statement, and this opinion incorporates all of the assumptions
and qualifications set forth in their opinion.
Our opinion expressed above is limited to the laws of the State of New
York, the Delaware General Corporation Law and the Act and the federal laws of
the United States of America.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Opinions" in the Prospectus. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the 1933 Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
<PAGE>
EXHIBIT 5(B)
RICHARDS, LAYTON & FINGER
ONE RODNEY SQUARE
WILMINGTON, DE 19899
May 25, 1994
PLC Capital L.L.C.
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35202
Re: PLC Capital L.L.C.
Ladies and Gentlemen:
We have acted as special Delaware counsel for Protective Life Corporation, a
Delaware corporation ("Protective"), and PLC Capital L.L.C., a Delaware limited
liability company (the "Company"), 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 copies of the following:
(a) The Certificate of Formation of the Company, dated as of March 24,
1994 (the "Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on March 24, 1994;
(b) The Limited Liability Company Agreement of the Company, dated as of
March 24, 1994;
(c) The Amended and Restated Limited Liability Company Agreement of the
Company, dated as of May 20, 1994 (the "LLC Agreement");
(d) A Form of Action of Protective, as the Class A Interest Holder,
attached as Annex A to the LLC Agreement (the "Action"), relating to the
___% Cumulative Monthly Income Preferred Securities, Series _, of the
Company (each, a "Preferred Security" and collectively, the "Preferred
Securities");
(e) Amendment No. 4 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a prospectus subject to completion,
dated May 25, 1994 (the "Prospectus"), and a prospectus supplement subject
to completion, dated May 25, 1994 (the "Prospectus Supplement"), relating to
the Preferred Securities, as filed by Protective and the Company with the
Securities and Exchange Commission on May 25, 1994; and
(f) A Certificate of Good Standing for the Company, dated May 25, 1994,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the LLC Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (f) above. In particular, we have
not reviewed any document (other than the documents listed in paragraphs (a)
through (f) above) that is referred to in or incorporated by reference into the
Registration Statement. We assume 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.
<PAGE>
With respect to all documents examined by us, we have assumed that (i) all
signatures on documents examined by us are genuine, (ii) all documents submitted
to us as originals are authentic, and (iii) all documents submitted to us as
copies conform with the original copies of those documents.
For purposes of this opinion, we have assumed (i) that the LLC Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the admission of members to,
and the creation, operation, management and termination of, the Company, and
that the LLC Agreement and the Certificate are in full force and effect and have
not been 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, including the LLC Agreement by
Protective and Protective LLC Holding, Inc., a Delaware corporation, as members
of the Company, and (vi) that the Company is not treated as an association
taxable as a corporation for purposes of United States income taxation. We have
not participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited in 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. The Company has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware Limited Liability
Company Act (6 DEL.C. Section 18-101, ET SEQ.) (the "Act").
2. Upon (i) completion and due execution of the Action by Protective,
as the Class A Interest Holder, (ii) issuance of and payment for the
Preferred Securities as contemplated by the LLC Agreement, the Action and
the Registration Statement, and (iii) the reflection on the books and
records of the Company of all information required by the LLC Agreement and
the Act, the Preferred Securities will be valid and, subject to the
qualifications set forth herein, fully paid and nonassessable limited
liability company interests in the Company, as to which the Holders of the
Preferred Securities, in their capacities as such, will have no liability
solely by reason of being Holders of the Preferred Securities in excess of
their obligations to make payments provided for in the LLC Agreement and
their share of the Company's assets and undistributed profits (subject to
the obligation of a Holder of a Preferred Security to repay any funds
wrongfully distributed to it).
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. We also consent to
Debevoise & Plimpton relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them in connection with the issuance
of the Preferred Securities. Further, we hereby consent to the use of our name
under the heading "Legal Opinions" in each of the Prospectus and the Prospectus
Supplement. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person or entity for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER
<PAGE>
EXHIBIT 8(A)
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NY 10022
May 25, 1994
Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35202
PLC Capital L.L.C.
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35202
PROTECTIVE LIFE CORPORATION
PLC CAPITAL L.L.C.
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as special counsel to Protective Life Corporation, a Delaware
corporation ("Protective Life"), and PLC Capital L.L.C., a Delaware limited
liability company ("PLC Capital"), 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 (Registration No. 33-52831), as amended (the "Registration
Statement"), relating to the public offering of up to $175,000,000 in the
aggregate of (i) debt securities representing unsecured obligations of
Protective Life, (ii) shares of preferred stock of Protective Life, par value
$1.00 per share and (iii) Cumulative Monthly Income Preferred Securities (the
"Preferred Securities"), representing preferred limited liability company
interests of PLC Capital. The proceeds of the offering of Preferred Securities
(together with proceeds from the issuance of common limited liability company
interests in PLC Capital and related capital contributions) may be loaned by PLC
Capital to Protective Life and such loan may be evidenced by subordinated
debentures of Protective Life, to be issued pursuant to a Subordinated Indenture
to be entered into between Protective Life and AmSouth Bank N.A., as trustee. In
addition, certain payment obligations of PLC Capital with respect to the
Preferred Securities will be guaranteed by a subordinated guarantee of
Protective Life.
In so acting, we have participated in the preparation of the original
Limited Liability Company Agreement of PLC Capital, dated March 24, 1994, and
the Certificate of Formation of PLC Capital.
In connection with the issuance pursuant to the Registration Statement of
the Series A Preferred Securities (as defined in the Registration Statement),
you have requested that we render the opinion set forth below. In rendering such
opinion, we have examined and relied upon the representations and warranties as
to factual matters made in or pursuant to the documents referred to above and
upon the originals, or copies certified or otherwise identified to our
satisfaction, of such records, documents, certificates or other instruments as
in our judgment are necessary or appropriate to enable us to render the opinion
expressed below. We have not, however, undertaken any independent investigation
of any factual matter set forth in any of the foregoing. We have also assumed
the due execution and delivery of the Amended and Restated Limited Liability
Agreement substantially in the form of Exhibit 4(d) to the Registration
Statement (the "L.L.C. Agreement"), that the L.L.C. Agreement is valid and
enforceable in accordance with its terms and that PLC Capital will at all times
comply with the Delaware Limited Liability Company Act and the terms of the
L.L.C. Agreement. Our opinion addresses only the United States federal income
tax considerations of general application relevant to a beneficial owner
acquiring Series A Preferred Securities on their original issue at the original
offering price who is (i) an individual citizen or a resident of the United
States, (ii) a corporation or partnership created or organized in or under the
laws of the United States or any state thereof or the District of Columbia or
(iii) an estate or trust subject to United States federal income taxation
without regard to the source of its income.
<PAGE>
Subject to the foregoing and the qualifications and limitations set forth
herein, the statements set forth in the Prospectus Supplement subject to
completion dated May 25, 1994 relating to the issuance of the Series A Preferred
Securities under the caption "Certain Federal Income Tax Considerations", to the
extent that such statements relate to matters of law or legal conclusion,
constitute the opinion of Debevoise & Plimpton.
This opinion is based on the relevant law in effect (or, in the case of
Proposed Treasury Regulations, proposed) and the relevant facts that exist as of
the date hereof. No assurance can be given that the law or facts will not
change, and we have not undertaken to advise you or any other person with
respect to any event subsequent to the date hereof.
This opinion is addressed solely to you and no other person may rely on it,
PROVIDED that we hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of our name under the caption "Certain
Federal Income Tax Considerations" and "Legal Opinions" in the Prospectus
Supplement. In giving such consent, we do not thereby concede that we are within
the category of persons whose consent is required under Section 7 of the 1933
Act or the Rules and Regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ DEBEVOISE & PLIMPTON
<PAGE>
EXHIBIT 12(A)
PROTECTIVE LIFE CORPORATION
<TABLE>
<CAPTION>
3/31/94 3/31/93 1993 1992 1991 1990 1989
----------- ----------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
COMPUTATION OF RATIO OF CONSOLIDATED EARNINGS
TO FIXED CHARGES
Income before income tax...................... 24,379 17,295 85,044 59,947 51,703 40,282 32,286
Less pretax minority interest................. 0 0 (19) (90) (1,721) (1,326) 0
Add interest expense.......................... 1,972 1,337 6,338 4,806 5,738 5,400 1,330
----------- ----------- --------- --------- --------- --------- ---------
Earnings before interest and taxes............ 26,351 18,632 91,363 64,663 55,720 44,356 33,616
----------- ----------- --------- --------- --------- --------- ---------
----------- ----------- --------- --------- --------- --------- ---------
Earnings before interest and taxes divided by
interest expense............................. 13.4 13.9 14.4 13.5 9.7 8.2 25.3
COMPUTATION OF RATIO OF CONSOLIDATED EARNINGS
TO INTEREST ON DEBT AND INTEREST CREDITED ON
INVESTMENT PRODUCTS
Income before income tax...................... 24,379 17,295 85,044 59,947 51,703 40,282 32,286
Less pretax minority interest................. 0 0 (19) (90) (1,721) (1,326) 0
Add interest expense.......................... 1,972 1,337 6,338 4,806 5,738 5,400 1,330
Add interest credited to inv. products........ 58,460 50,344 220,772 173,658 132,533 54,767 14,385
----------- ----------- --------- --------- --------- --------- ---------
Earnings before interest and taxes............ 84,811 68,976 312,135 238,321 188,253 99,123 48,001
----------- ----------- --------- --------- --------- --------- ---------
----------- ----------- --------- --------- --------- --------- ---------
Earnings before interest and taxes divided by
interest expense plus interest credited on
inv. products................................ 1.4 1.3 1.4 1.3 1.4 1.6 3.1
----------- ----------- --------- --------- --------- --------- ---------
----------- ----------- --------- --------- --------- --------- ---------
</TABLE>
<PAGE>
EXHIBIT 15(A)
Securities and Exchange Commission
Washington, D.C. 20549
Re: Protective Life Corporation and PLC Capital L.L.C.
Registration on Form S-3
We are aware that our report dated April 26, 1994, except for Note G, as to
which the date is May 2, 1994, on our review of interim financial information of
Protective Life Corporation and subsidiaries for the three month periods ended
March 31, 1994 and 1993 is included in this registration statement. Pursuant to
Rule 436(c) under the Securities Act of 1933, this report should not be
considered a part of the registration statement prepared or certified by us
within the meaning of Section 7 and 11 of that Act.
/s/ COOPERS & LYBRAND
COOPERS & LYBRAND
Birmingham, Alabama
<PAGE>
EXHIBIT 23(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Amendment No. 4 to the
Registration Statement on Form S-3 of Protective Life Corporation and PLC
Capital L.L.C. for the registration of debt securities and preferred stock of
Protective Life Corporation and preferred securities of PLC Capital L.L.C. of
our report, which includes an explanatory paragraph with respect to changes in
Protective Life Corporation's methods of accounting for certain investments in
debt and equity securities in 1993 and postretirement benefits other than
pensions in 1992, dated February 14, 1994, on our audits of the consolidated
financial statements and financial statement schedules of Protective Life
Corporation as of December 31, 1993 and 1992 and for the years ended December
31, 1993, 1992, and 1991. We also consent to the reference to our firm under the
caption "Experts" in the Registration Statement.
/s/ COOPERS & LYBRAND
COOPERS & LYBRAND
Birmingham, Alabama
May 23, 1994
<PAGE>
Exhibit 23(b)
CONSENT OF KPMG PEAT MARWICK
The Board of Directors
Protective Life Corporation:
We consent to the incorporation by reference in this Amendment No. 4 to
Registration Statement on Form S-3 of Protective Life Corporation and PLC
Capital L.L.C. of our report to the Board of Directors of Wisconsin National
Life Insurance Company, dated February 26, 1993 (including Note 11 thereto,
which is dated as of May 4, 1993), relating to the balance sheets of Wisconsin
National Life Insurance Company as of December 31, 1992 and 1991 and the
related statements of income, stockholder's equity and cash flows for
the years then ended, which report appears in the Protective Life Corporation's
Current Report on Form 8-K, dated August 4, 1993, filed with the Securities and
Exchange Commission. We also consent to the reference to our firm under the
caption "Experts" in the Registration Statement.
/s/ KPMG PEAT MARWICK
KPMG PEAT MARWICK
Milwaukee, Wisconsin
May 20, 1994
