Exhibit 1.1
PROTECTIVE LIFE CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
February 23, 2001
To the Representatives of the
several Underwriters to be named in
the respective Pricing Agreements
hereinafter described.
Dear Sirs or Madams:
From time to time Protective Life Corporation, a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements in the form of
Annex I hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and therein,
to issue and sell to the firms named in Schedule I to the applicable Pricing
Agreement (such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the securities specified therein) certain of its debt
securities (the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the indenture (such indenture, including any supplement thereto relating to the
Designated Securities, the "Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated
Securities in the Pricing Agreement relating thereto will act as
representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and
to Underwriters who act without any firm being designated as their
representative. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal amount
of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by
each Underwriter and shall set forth the date, time and manner of delivery of
such Designated Securities and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-80769), as amended
by Amendment No. 1 thereto, in respect of the Securities, Common Stock and
Preferred Stock of the Company and the Preferred Securities of PLC Capital Trust
III and PLC Capital Trust IV, limited liability companies formed under the laws
of the State of Delaware (collectively, the "Registered Securities"), has been
filed with the Securities and Exchange Commission (the "Commission") and, as so
amended, has been declared effective by the Commission; such registration
statement and any post-effective amendment thereto (including any registration
statement increasing the size of the offering (a "Rule 462(b) Registration
Statement") filed pursuant to Rule 462(b) of the Act, as defined below), each in
the form heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to such registration statement, but including all documents
incorporated by reference in the prospectus contained therein, to the
Representatives for delivery to each of the other Underwriters, have been
declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission;
and no stop order suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus, together with the base
prospectus included in such registration statement, being hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statement
(including any Rule 462(b) Registration Statement) including all exhibits
thereto and the documents incorporated by reference in the prospectus contained
in the registration statement at the time such part of the registration
statement becomes effective but excluding any Forms T-1 and, if applicable,
including the information contained in the form of final prospectus filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A or 434(d) under the Act to be a
part of such registration statement at effectiveness, each as amended at the
time such part of the registration statement become effective, being hereinafter
called the "Registration Statement"; the prospectus (including, if applicable,
any prospectus supplement) relating to the Registered Securities, in the form in
which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter called
the "Prospectus", provided, that if the
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Underwriters elect to rely on Rule 434 of the Securities Act of 1933, as amended
(the "Act"), then all references to "Prospectus" shall be deemed to include the
final or preliminary prospectus and the applicable term sheet or abbreviated
term sheet (the "Term Sheet"), as the case may be, in the form first furnished
to the Underwriters by the Company in reliance on Rule 434, and all references
herein to the date of the Prospectus shall mean the date of the Term Sheet; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed with the Commission after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated or deemed to be incorporated by reference
in the Prospectus, when they became effective or were filed with the Commission,
as the case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Company met, at the time of effectiveness of the Registration
Statement, and will meet as of the date of any Pricing Agreement and any Time of
Delivery, the requirements for use of Form S-3 under the Act. The Registration
Statement, as of the applicable effective date, and the Prospectus, as of the
applicable filing date, the date
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hereof, the date of any Pricing Agreement and any Time of Delivery, conform and
will conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto as of
the date hereof, the date of any Pricing Agreement and as of any Time of
Delivery, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein (i) in the case of the Registration Statement, not misleading and (ii)
in the case of the Prospectus, in light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities;
Each preliminary prospectus and prospectus delivered to the Underwriters
for use in connection with the offering of the Securities will, at the time of
such delivery, be identical in all material respects to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(d) The financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, included or incorporated by reference in the Registration
Statement present fairly in accordance with GAAP the information required to be
started therein. The selected financial information and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement. Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been (i) any material change in the capital
stock or any increase in the long-term debt of the Company or any of its
subsidiaries in excess of $9 million, (ii) any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole or (iii) any
reduction in the statutory capital or surplus of the Company's subsidiaries
engaged in the business of insurance (each an "Insurance Subsidiary," and
collectively, the "Insurance Subsidiaries"), taken as a whole in excess of $9
million, in each case otherwise than as set forth or contemplated in the
Prospectus;
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(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
(f) Each of Protective Life Insurance Company ("Protective Life"), United
Dental Care, Inc. ("UDC") and West Coast Life Insurance Company ("West Coast"),
(each a "Material Subsidiary" and, collectively, the "Material Subsidiaries")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, in any case where it
could be reasonably expected that such failure to be so qualified would have a
material adverse effect on the business, financial position or results of the
Company and its subsidiaries considered as a whole;
(g) Each of Protective Life and West Coast Life is duly organized and
licensed as an insurance company and UDC is otherwise licensed as required in
its state of incorporation and each Material Subsidiary is duly licensed or
authorized as an insurer or otherwise in each other jurisdiction where it is
required to be so licensed or authorized to conduct its business as described in
the Prospectus, except for any such jurisdiction in which the failure to be so
licensed or authorized would not have 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 any Material Subsidiary has
received any notification from any insurance or other regulatory authority to
the effect that any additional authorization, approval, order, consent, license,
certificate, permit, registration or qualification from such insurance or other
regulatory authority is needed to be obtained by either of the Company or any
Material Subsidiary in any case where it could be reasonably expected that the
failure to obtain any such additional authorization, approval, order, consent,
license, certificate, permit, registration or qualification would have a
material adverse effect on the business, financial position or results of
operations of the Company and its subsidiaries, considered as a whole;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, as amended or supplemented, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform in all material respects to the descriptions
thereof contained in the Prospectus; and all of the issued shares of capital
stock of each of the Material Subsidiaries have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company, free and
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clear of any perfected security interests and, to the Company's best knowledge,
any other security interests, claims, liens, or encumbrances;
(i) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles and except that no representation or warranty is made with respect to
the enforceability of Section 8 hereof. The Securities have been duly
authorized, and, when Designated Securities are issued and delivered pursuant to
this Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture, which will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof), the Indenture will
constitute a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture conforms,
and the Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(j) The issue and sale of the Securities and the compliance by the Company
with all of the provisions of the Securities, the Indenture, this Agreement and
any Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not (1) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any Material Subsidiary is a party or by
which the Company or any Material Subsidiary is bound or to which any of the
property or assets of the Company or any Material Subsidiary is subject, except,
in all such cases, for such conflicts, breaches, violations or defaults as would
not have a material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries taken as a whole or would not
affect the validity of or otherwise have a material adverse effect on the
issuance or sale of the Designated Securities or (2) result in any violation of
the provisions of (A) the Certificate of Incorporation or By-laws of the Company
or any Material Subsidiary or (B) any statute or any order, rule or regulation
of any court or insurance regulatory authority or other governmental agency or
body having jurisdiction over the Company or any Material Subsidiary or any of
their properties; provided, however that in the case of clause (B) of this
paragraph 2(j), this representation and warranty shall not extend to such
violations as would not have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries taken as
a whole or would not affect the validity of or otherwise have a material adverse
effect on the issuance or sale of the Designated Securities; provided further,
that insofar as this representation and warranty
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relates to the performance by the Company of its obligations under this
Agreement, the Pricing Agreement or the Indenture relating to the Designated
Securities, such performance is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles, and
provided further that no representation or warranty is made with respect to the
enforceability of Section 8 hereof; and no consent, approval, authorization,
order, registration or qualification of or with any such court or insurance
regulatory authority or other governmental agency or body having jurisdiction
over the Company or any Material Subsidiary is required for the issue and sale
of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the Indenture, except
such as have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may be required under
state securities or Blue Sky laws or insurance securities laws in connection
with the purchase and distribution of the Securities by the Underwriters and
except those which, if not obtained, will not have a material adverse effect on
the financial condition or results of operations of the Company and its
subsidiaries taken as a whole or would not affect the validity of or otherwise
have a material adverse effect on the issuance or sale of the Designated
Securities;
(k) Other than as set forth or contemplated in the Prospectus, there are
no actions, suits or proceedings before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or to the knowledge
of the Company threatened to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the consolidated financial position,
stockholders' equity (if applicable), total surplus (if applicable) or results
of operations of the Company and its subsidiaries taken as a whole;
(l) The Company is not and, upon the issuance or sale of the Securities
and the application of the net proceeds therefrom, will not be an "investment
company" or an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(m) The accountants who certified certain financial statements and
supporting schedules of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and Prospectus, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(n) The statements set forth in the Prospectus under the captions
"Description of Debt Securities of Protective" and "Description of the Senior
Notes", insofar as they purport to constitute a summary of the terms of the
Securities, and insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and fair;
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(o) Neither the Company nor any of its subsidiaries is in violation of its
Certificate of Incorporation or By-laws or other charter documents or in default
in the performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound which would reasonably be
expected to have a material adverse effect on the financial position or results
of the Company and its subsidiaries taken as a whole or an adverse effect on the
offering, servicing or payment of the debt evidenced by the Designated
Securities;
(p) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in any rating of
the Company or Protective Life Insurance or the rating accorded any of the
Company's debt securities by ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's
Corporation, A.M. Best Company, Inc. or Fitch Inc. and (ii) no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, any such rating.
Any certificate signed by any director or officer of the Company and
delivered to the Representatives or to counsel for the Representatives in
connection with a sale of any Designated Security to the Underwriters shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby on the date of such certificate.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Unless otherwise specified in the applicable Pricing Agreement, global
certificates for Designated Securities to be purchased by each Underwriter
pursuant to such Pricing Agreement, registered in the name Cede & Co., shall be
delivered by or on behalf of the Company to The Depository Trust Company, which
shall release such Designated Securities to the accounts of the Representatives
for the account of such Underwriter, against payment by such Underwriter or on
its behalf of the purchase price therefor by federal funds wire transfer of
immediately available funds to a bank account specified by the Company and
described in Schedule II to such Pricing Agreement, all at the place and time
and date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
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(a) To prepare the Prospectus as amended and supplemented in relation to
the applicable Designated Securities in a form approved by the Representatives
(which approval will not be unreasonably withheld) and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than such time as required by
Rule 424(b) and to comply with the requirements of Rule 430A and Rule 434 under
the Act, if and as applicable; to make no further amendment or any supplement to
the Registration Statement or Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be reasonably disapproved by the
Representatives for such Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Representatives with copies thereof; to
comply with the Act and the Exchange Act so as to permit the completion of the
distribution of the Securities; and to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and sale under
the securities laws of such United States jurisdictions as the Representatives
may reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such Securities, provided that
in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction and provided further that in connection therewith the Company shall
not be required to qualify such Designated Securities for offering and sale
under the securities laws of any such jurisdiction for a period in excess of
nine months after the initial time of issue of the Prospectus as amended or
supplemented relating to such Designated Securities;
(c) To furnish the Underwriters with copies of the Prospectus as amended
or supplemented and the documents incorporated by reference therein in such
quantities as the Representatives may from time to time reasonably request and,
if the delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities
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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 earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule 158);
(f) The Company will notify the Underwriters promptly of any change in (or
withdrawal of) the rating assigned by any nationally recognized statistical
rating organization to any debt securities of the Company or the public
announcement by any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company;
(g) The Company will use the net proceeds received by it from each sale of
the Designated Securities in the manner specified in the Prospectus under "Use
of Proceeds;"
(h) The Company, during the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including the
date which is 15 days from the Date of Delivery for such Designated Securities,
will not sell, offer to sell, grant any option for the sale of, or otherwise
dispose of any of the Designated Securities, any security convertible into or
exchangeable into or exercisable for the Designated Securities or any debt
securities of the Company which mature more than one year after any Time of
Delivery with respect to the Designated Securities and which are substantially
similar to the Designated Securities, without the prior written consent of the
Underwriters.
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6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and, subject to the proviso to Section
5(c), the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
producing and printing or duplicating any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Indenture, any Blue Sky and Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the reasonable
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the cost of qualifying the Securities
with the Depository Trust Company (if applicable); (viii) the fees and expenses
of any Trustee and any agent of any Trustee and the fees and disbursements of
counsel for any Trustee in connection with any Indenture and the Securities; and
(ix) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities, including any Term Sheet, if applicable, shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on
11
the part of the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, or other counsel for the
Underwriters, shall have furnished to the Representatives such opinion or
opinions, dated the Time of Delivery for such Designated Securities, with
respect to such matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Senior Vice President and General Counsel of
the Company, or any successor having substantially equivalent responsibilities
with the Company, shall have furnished to the Representatives such counsel's
written opinion, dated each Time of Delivery for such Designated Securities,
respectively, in form and substance satisfactory to the Representatives, to the
effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended or
supplemented, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform in all material
respects to the description thereof in the Prospectus as amended or
supplemented; and all of the issued shares of capital stock of each of the
Material Subsidiaries have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear of
any perfected security interests and, to such counsel's best knowledge,
any other security interests, claims, liens or encumbrances;
(iii) The documents incorporated by reference in the Registration
Statement and the Prospectus as amended or supplemented (other than the
financial statements and related notes, the financial statement schedules
and other financial and statistical data included therein as to which such
counsel need express no opinion), when they become effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such documents, when
such documents became effective or were so filed, as the
12
case may be, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading;
(iv) The issue and sale of the Designated Securities being delivered at
such Time of Delivery and the compliance by the Company with all of the
provisions of the Designated Securities, the Indenture, this Agreement,
any Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or any
Material Subsidiary is a party or by which the Company or any Material
Subsidiary is bound or to which any of the property or assets of the
Company or any Material Subsidiary is subject, except, in all such cases,
for such conflicts, breaches, violations or defaults as would not
reasonably be expected to have a material adverse effect on the financial
condition of the Company and its subsidiaries taken as a whole or would
not have a material adverse effect on the issuance or sale of the
Designated Securities, or (ii) result in any violation of the provisions
of (A) the Certificate of Incorporation or By-Laws of the Company or any
Material Subsidiary or (B) any statute known to such counsel to be
applicable to the Company or any Material Subsidiary or any of their
respective properties, or any order, rule or regulation known to such
counsel of any court or insurance regulatory authority or other
governmental agency or body having jurisdiction over the Company or any
Material Subsidiary or any of their respective properties, except, with
respect to clause (B) of this paragraph (iv), such violations as would not
reasonably be expected to have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries
taken as a whole or would not affect the validity of or otherwise have a
material adverse effect on the issuance or sale of the Designated
Securities; and except that for purposes of this paragraph (ii) 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;
(v) 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,
13
approvals, authorizations, orders, registrations or qualifications as may
be required under state securities or Blue Sky laws or insurance
securities laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters, and except those which, if not
obtained, would not have a material adverse effect on the financial
condition or results of operation of the Company and its subsidiaries
taken as a whole;
(vi) There are no actions, suits or proceedings before or by any
government, governmental instrumentality or court, domestic or foreign,
now pending or, to the best of such counsel's knowledge, threatened, to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject of a
character required under the Federal securities laws to be disclosed in
the Registration Statement or Prospectus which are not adequately
disclosed in the Registration Statement or Prospectus;
In rendering the opinion required by subsection (c) of this Section, (i)
such counsel may state that she is admitted to the Bar of the State of Alabama
only, and (ii) such counsel may rely (A) as to any matter to which you consent
(which consent shall not be unreasonably withheld), to the extent specified in
such opinion, upon the opinions (copies of which shall have been provided to the
Representatives) of other counsel in good standing whom such counsel believes to
be reliable, provided that such counsel shall state that she believes that both
she and the Representatives are justified in relying on such opinions and (B) as
to matters of fact, upon certificates of officers and representatives of the
Company and of public officials (copies of which shall have been provided to the
Representatives), provided that such counsel shall state that she believes that
both she and the Representatives are justified in relying upon such
certificates.
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.
14
(d) ▇▇▇▇▇ ▇▇▇▇, Esq., Senior Associate Counsel of the Company, or other
counsel for the Company satisfactory to the Representatives, shall have
furnished to the Representatives her written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Designated Securities have been duly authorized, issued, executed,
authenticated and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, enforceable against the Company in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws relating to or affecting creditors' rights
generally and to general equity principles (regardless of whether
considered in a proceeding at law or in equity); and the Designated
Securities conform in all material respects to the description thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(ii) The Indenture has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
Trustee, the Indenture constitutes a valid and legally binding instrument
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws relating to or affecting creditors' rights generally and
to general equity principles (regardless of whether considered in a
proceeding at law or in equity); the Indenture has been duly qualified
under the Trust Indenture Act; and the Indenture conforms in all material
respects to the description thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities;
(iii) This Agreement and the Pricing Agreement with respect to the
Designated Securities being delivered at such Time of Delivery have been
duly authorized, executed and delivered by the Company;
(iv) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related notes, the financial statement schedules and other
financial and statistical data included therein, as to which such counsel
need express no opinion) comply as to form in all material respects with
the requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder;
(v) The Registration Statement has become effective under the Act; the
Prospectus has been filed pursuant to Rule 424 under the Act, and no
proceedings for a stop order have been instituted or are pending or, to
the knowledge of such counsel, threatened under Section 8(d) of the Act;
and no further approval of, authorization, consent, certificate or order
of any governmental body, federal, state or other, is required in
connection with the issuance and sale of the
15
Designated Securities to the Underwriters as provided in the Agreement,
except as may be required by state securities laws;
(vi) The Company meets the requirements for use of Form S-3 under the Act;
(vii) The statements contained in the Prospectus under the caption
"Description of Debt Securities of Protective" and the corresponding
sections and any section describing tax matters in any prospectus
supplement relating to the Designated Securities being delivered at such
Time of Delivery, insofar as such statements constitute summaries of
certain provisions of the documents or U.S. laws referred to therein,
fairly summarize the material provisions of such documents or U.S. laws;
and
(viii) The Company is not, and following consummation of the transactions
contemplated hereby and the application of the proceeds therefrom in the
manner set forth in the Prospectus will not be, an "investment company" or
under the "control" of an "investment company" as such terms are defined
in the Investment Company Act.
In rendering the foregoing opinion, such counsel may state that she
expresses no opinion as to the laws of any jurisdiction other than the Federal
laws of the United States, the laws of the State of New York and The General
Corporation Law of the State of Delaware.
Such counsel shall also have stated that, while she has not herself
checked the accuracy or completeness of or otherwise verified, and is not
passing upon and assumes no responsibility for the accuracy or completeness of,
the statements contained in the Registration Statement or the Prospectus, except
to the limited extent stated in paragraphs (i), (ii) and (v) above, in the
course of her review and discussion of the contents of the Registration
Statement and the Prospectus with certain officers and employees of the Company
and its independent accountants, but without independent check or verification,
no facts have come to the attention of such counsel that would cause such
counsel to believe that the Registration Statement or the Prospectus, as amended
or supplemented, as of the date of the Pricing Agreement with respect to the
Designated Securities and the Time of Delivery for such Designated Securities
(other than the financial statements and related notes, the financial statement
schedules, and other financial and statistical data included therein, and except
for the Statement of Eligibility of the Trustee on Form T-1 under the Trust
Indenture Act, as to which such counsel need express no opinion) contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(e) On the date of the Pricing Agreement for such Designated Securities
and at the Time of Delivery for such Designated Securities, the independent
accountants of the Company who have certified the financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished
16
to the Representatives a letter, dated the date of the Pricing Agreement in
substantially the form attached hereto as Exhibit 7(e), and a letter dated such
Time of Delivery, in customary form reasonably satisfactory to the
Representatives, and with respect to such letter dated such Time of Delivery, as
to such other matters as the Representatives may reasonably request and in form
and substance satisfactory to the Representatives;
(f) Since the respective dates as of which information is given in the
Prospectus as amended or supplemented to the date of the Pricing Agreement 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 to the date of the Pricing Agreement, 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 to the date
of the Pricing Agreement;
(g) At the Time of Delivery, (i) the Designated Securities shall be rated
in one of the four highest rating categories for debt securities ("Investment
Grade") by either ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Corporation, and the Company shall have delivered to the Underwriters a letter,
dated as of a recent date satisfactory to the Underwriters, from ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Corporation, as the case may be, or
other evidence satisfactory to the Underwriters, confirming that the Designated
Securities have Investment Grade ratings. On or after the date of the Pricing
Agreement relating to the Designated Securities (i) no downgrading shall have
occurred in any rating of the Company or Protective Life Insurance or the rating
accorded any of the Company's debt securities by ▇▇▇▇▇'▇ Investors Service,
Inc., Standard & Poor's Corporation, A.M. Best Company, Inc. or Fitch 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 any of the securities of the
Company or of 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) any material adverse
change, whether or not foreseeable at the date of this Agreement, in the
financial markets in the United States, or any 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;
17
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives may reasonably
request; and
(j) All proceedings taken by the Company in connection with the issuance
and sale of the Designated Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and to counsel to the
Underwriters.
8. (a) The Company will indemnify and hold harmless each Underwriter and
each person who controls such Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act 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
18
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, severally and not jointly, will indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus,
as amended or supplemented, or any such prospectus, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be
19
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. No indemnifying party
shall, without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 8 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the 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
20
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
21
include any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, 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
22
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, with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to Protective Life Corporation,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (205)
868-3597), attention of General Counsel; provided, however, that any notice to
an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in the applicable Pricing Agreement or, if none in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
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.
23
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Investments
24
ANNEX I
PRICING AGREEMENT
February 23, 2001
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Protective Life Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated February 23, 2001 (the "Underwriting Agreement"),
to issue and sell to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the
"Underwriter") 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
Representatives designated to act on behalf of the Representatives and on behalf
of the Underwriter 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 the Underwriter, and the Underwriter agrees to purchase from
the Company, at the time and place and at the purchase price to the Underwriter
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
25
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between the Underwriter and the Company.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
--------------------------------
Name:
Title:
26
SCHEDULE I
Principal Amount
of Designated Securities
Underwriter to be Purchased
--------------------------- -------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporate $ 100,000,000
Total. $ 100,000,000
27
SCHEDULE II
Title of Designated Securities:
Floating Rate Senior Notes due February 28, 2003
Aggregate Principal Amount:
$100,000,000
Price to Public:
Initially at 100% of the principal amount of the Designated Securities, and
thereafter at varying prices related to prevailing market prices at time of
resale
Purchase Price by Underwriters:
99.70% of the principal amount of the Designated Securities
Specified Funds for Payment of Purchase Price:
Immediately Available Funds payable to the Company's bank account at:
AmSouth Bank NA
Birmingham, Alabama
RT: ▇▇▇▇▇▇▇▇▇
for: Protective Life Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Account #: 224383
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Indenture:
Indenture dated June 1, 1994, between the Company and The Bank of New York, as
Trustee, as supplemented by Supplemental Indenture No. 8 dated February 28, 2001
Maturity:
February 28, 2003
Interest Rate:
LIBOR plus 0.375%
Interest Payment Dates:
28
February 28, May 28, August 28 and November 28.
Redemption Provisions:
No redemption provisions.
Sinking Fund Provisions:
No sinking fund provisions
Defeasance Provisions:
The provisions of Section 4.4 of the Indenture shall apply to the Designated
Securities. The provisions of Section 4.5 of the Indenture shall apply to the
Designated Securities with respect of the covenants specified in said Section
4.5.
Time of Delivery:
9:00 am, eastern standard time, February 28, 2001
Closing Location:
The offices of:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Names and Addresses of Representatives:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
29
