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PLC CAPITAL TRUST III
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7 1/2% Trust Originated Preferred Securities(SM)*
("TOPrS(SM)")
guaranteed to a limited extent by
PROTECTIVE LIFE CORPORATION
PURCHASE AGREEMENT
Dated: August 17, 2001
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* (SM)"Trust Originated Preferred Securities" and "TOPrS" are service
marks of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
4,000,000 Preferred Securities
PLC CAPITAL TRUST III
(A Delaware Trust)
7 1/2% Trust Originated Preferred Securities(SM) ("TOPrS(SM)"* )
(Liquidation Amount of $25.00 per Preferred Security)
PURCHASE AGREEMENT
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August 17, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
PLC Capital Trust III (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections 3801
et seq.), and Protective Life Corporation, a Delaware corporation (the "Company"
and, together with the Trust, the "Offerors"), confirm their agreement (the
"Agreement") with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., as representatives (in such capacity, collectively, the
"Representatives") of the several Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof) with respect to the
sale by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of an aggregate of 4,000,000 7 1/2% Trust Originated Preferred
Securities (liquidation amount of $25 per preferred security) of the Trust (the
"Preferred Securities"). The Preferred Securities will be guaranteed by the
Company with respect to distributions and payments upon liquidation, redemption
and otherwise (the "Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement, to be dated as of August 22, 2001 (the
"Preferred Securities Guarantee Agreement"), between the Company and Wilmington
Trust Company, as trustee (the "Guarantee Trustee"), and in certain
circumstances described in the Prospectus (as defined herein) the
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* (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
Trust will distribute Subordinated Debt Securities (as defined herein) to
holders of Preferred Securities. The Preferred Securities, the related Preferred
Securities Guarantee and the Subordinated Debt Securities are collectively
referred to herein as the "Securities."
Prior to the purchase and public offering of the Preferred
Securities by the several Underwriters, the Offerors and the Representatives,
acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Offerors and the Representatives and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Preferred Securities will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the execution
and delivery of the Pricing Agreement, this Agreement shall be deemed to
incorporate the Pricing Agreement.
The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-80769) covering the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the sale of securities of the Company, the Trust
and certain other statutory business trusts organized under the Delaware Act,
including the Securities, have filed such amendments thereto, if any, as may
have been required to the date hereof, and will file such additional amendments
thereto as may hereafter be required. Promptly after the execution and delivery
of this Agreement, the Offerors will prepare and file a prospectus in accordance
with the provisions of Rule 430A ("Rule 430A") of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations. The information
included in such prospectus that was omitted from such registration statement at
the time it became effective but that is deemed part of such registration
statement at the time it became effective pursuant to paragraph (b) of Rule 430A
is referred to as "Rule 430A Information." Any prospectus that omitted the Rule
430A Information that was used after such effectiveness and prior to the
execution and delivery of this Agreement is herein called a "preliminary
prospectus." Such registration statement, excluding the exhibits thereto and
schedules thereto, if any, but including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information is herein called the
"Registration Statement." The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Securities is herein called the "Prospectus." For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information that is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information that are
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to
mean and include the filing of any document under the Securities Exchange Act of
1934, as amended (the "1934 Act"), that is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
The Offerors understand that the Underwriters propose to make a
public offering of the Securities as soon as the Representatives deem
advisable after this Agreement and the Pricing Agreement have been executed
and delivered. The entire proceeds to the Trust from the sale of the
Preferred Securities will be combined with the entire proceeds from the sale
by the Trust to the Company of its common securities (the "Common Securities"
and, together with the Preferred Securities, the "Trust Securities"), as
guaranteed by the Company, to the extent set forth in the Prospectus, with
respect to distributions and payments upon liquidation and redemption (the
"Common Securities Guarantee" and together with the Preferred Securities
Guarantee, the "Guarantees") pursuant to the Common Securities Guarantee
Agreement, to be dated as of August 22, 2001 (the "Common Securities
Guarantee Agreement" and, together with the Preferred Securities Guarantee
Agreement, the "Guarantee Agreements"), between the Company and the Guarantee
Trustee, as Trustee, and will be used by the Trust to purchase the
$103,093,000 aggregate principal amount of 7 1/2% Subordinated Debentures due
2031, Series D (the "Subordinated Debt Securities") to be issued by the
Company under the Indenture (as defined herein). The Preferred Securities and
the Common Securities will be issued pursuant to the amended and restated
declaration of trust of the Trust, dated as of August 22, 2001 (the
"Declaration"), among the Company, as Sponsor, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, as trustees (the "Regular Trustees"), and Wilmington Trust Company,
as institutional trustee (the "Institutional Trustee") and as Delaware
trustee (the "Delaware Trustee" and, together with the Institutional Trustee
and the Regular Trustees, the "Trustees"). The Subordinated Debt Securities
will be issued pursuant to the Subordinated Indenture dated as of June 1,
1994 (the "Base Indenture"), between the Company and The Bank of New York (as
successor to AmSouth Bank), as trustee (the "Debt Trustee"), as supplemented
by (i) Supplemental Indenture No. 1, dated as of June 9, 1994 ("Supplemental
Indenture No. 1"), (ii) Supplemental Indenture No. 2, dated as of August 1,
1994 ("Supplemental Indenture No. 2"), (iii) Supplemental Indenture No. 3,
dated as of April 29, 1997 ("Supplemental Indenture No.3"), (iv) Supplemental
Indenture No. 4, dated as of November 20, 1997 ("Supplemental Indenture
No.4"), and (v) Supplemental Indenture No. 5, to be dated as of August 22,
2001 ("Supplemental Indenture No.5" and, together with the Base Indenture and
all other amendments and supplements thereto in effect on the date hereof,
the "Indenture"), between the Company and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to
each Underwriter as of the date hereof, as of the date of the Pricing Agreement
(such latter date being hereinafter referred to as the "Representation Date")
and as of the Closing Time referred to in Section 2 hereof as follows:
(i) The Offerors meet, and at the respective times of
the commencement and consummation of the public offering of the
Securities will meet, the requirements for use of Form S-3 under the 1933
Act. The Registration Statement has become effective under the 1933 Act.
No stop order suspending the effectiveness of the Regis-
tration Statement has been issued and no proceeding for that purpose has
been initiated or, to the knowledge of the Offerors, threatened by the
Commission.
(ii) At the respective times the Registration Statement
and any post-effective amendment thereto (including the filing of any
amendment to the Company's most recent Annual Report on Form 10-K with
the Commission) became effective, at the Representation Date and at the
Closing Time, such Registration Statements and such amendments and
supplements thereto complied and will comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission under the Trust Indenture Act of 1939, as amended (the "1939
Act") (the "1939 Act Regulations"), and did not 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. At the date of the Prospectus, at the Representation Date
and at the Closing Time, the Prospectus and any amendments or supplements
thereto did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements in or
omissions from (A) that part of the Registration Statement which
constitutes the Statements of Eligibility and Qualification (Forms T-1)
under the 1939 Act of the Delaware Trustee, the Institutional Trustee,
the Debt Trustee or the Guarantee Trustee or (B) the information
contained in the Registration Statement or the Prospectus in reliance
upon and in conformity with information furnished in writing to the
Offerors by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ specifically for
inclusion in the Registration Statement or the Prospectus and actually
included therein.
(iii) Each preliminary prospectus and prospectus filed as
part of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 of the 1933 Act
Regulations, complied as to form when so filed in all material respects
with the 1933 Act Regulations and, if applicable, each preliminary
prospectus and the 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.
(iv) The documents incorporated by reference in the
Registration Statement or Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at
the time the Prospectus was issued, at the Representation Date and at the
Closing Time, did not 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.
(v) PriceWaterhouseCoopers LLP, the accountants who
certified the financial statements and supporting schedules included in
or incorporated by reference
into the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations. 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 stated 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 or incorporated by reference in the
Registration Statement and the Prospectus.
(vi) The Trust has been duly created and is validly
existing and in good standing as a business trust under the Delaware Act
with the power and authority to own property and to conduct its business
as described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement, the Pricing
Agreement, the Preferred Securities, the Common Securities and the
Declaration; the Trust is duly qualified to transact business as a
foreign entity and is in good standing in each jurisdiction in which such
qualification is necessary, except where the failure to so qualify or be
in good standing would not have a material adverse effect on the Trust;
the Trust is not a party to or otherwise bound by any material agreement
other than those described in the Prospectus; the Trust is and will
(under current law) be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to GAAP.
(vii) The Common Securities have been duly authorized by
the Trust pursuant to the Declaration and, when issued and delivered by
the Trust to the Company against payment therefore as described in the
Registration Statement and the Prospectus, will be validly issued and,
subject to the terms of the Declaration, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust and will
conform in all material respects to the description thereof contained in
the Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equitable right.
(viii) This Agreement has been, and as of the
Representation Date the Pricing Agreement will have been, duly
authorized, executed and delivered by each of the Offerors.
(ix) The Declaration has been duly authorized by the
Company and, at the Closing Time, will have been duly executed and
delivered by the Company and the
Trustees, and assuming due authorization, execution and delivery of the
Declaration by the Institutional Trustee and the Delaware Trustee, the
Declaration will, at the Closing Time, be a valid and binding obligation
of the Company, the Trust and the Regular Trustees, enforceable against
the Company and the Regular Trustees in accordance with its terms, except
to the extent that enforcement thereof may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
the rights of creditors generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding at law
or in equity) (collectively, the "Bankruptcy Exceptions") and will
conform in all material respects to the description thereof contained in
the Prospectus; and the Declaration has been duly qualified under the
▇▇▇▇ ▇▇▇.
(x) Each of the Guarantees and the Guarantee Agreements
has been duly authorized by the Company and, when validly executed and
delivered by the Company, and, in the case of the Preferred Securities
Guarantee and the Preferred Securities Guarantee Agreement, assuming due
authorization, execution and delivery of the Preferred Securities
Guarantee Agreement by the Guarantee Trustee, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions, and each of the Guarantees
and the Guarantee Agreements will conform in all material respects to the
description thereof contained in the Prospectus; and the Preferred
Securities Guarantee Agreement has been duly qualified under the 1939
Act.
(xi) The Preferred Securities have been duly authorized
by the Trust pursuant to the Declaration and, when issued and delivered
pursuant to this Agreement against payment of the consideration therefore
as provided herein, will be validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the Trust
(provided that the holders of the Preferred Securities may be obligated
to make certain payments as set forth in the Declaration) and will
conform in all material respects to the description thereof contained in
the Prospectus; the issuance of the Preferred Securities is not subject
to preemptive or other similar rights; and holders of Preferred
Securities will be entitled to the same limitation of personal liability
under Delaware law as extended to stockholders of private corporations
for profit.
(xii) Each of the Regular Trustees is an employee of the
Company and has been authorized by the Company to execute and deliver the
Declaration; the Declaration has been duly executed and delivered by the
Regular Trustees and is a valid and binding obligation of each Regular
Trustee, enforceable against such Regular Trustee in accordance with its
terms except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xiii) The Indenture has been duly authorized by the
Company; each of the Base Indenture, Supplemental Indenture No. 1,
Supplemental Indenture No. 2, Supplemental Indenture No. 3 and
Supplemental Indenture No. 4 does constitute, and Supplemental Indenture
No. 5, when validly executed and delivered by the Debt Trustee, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except to the extent the
enforcement thereof may be
limited by the Bankruptcy Exceptions; the Indenture will conform in all
material respects to the description thereof contained in the Prospectus;
and the Indenture has been duly qualified under the 1939 Act.
(xiv) The Subordinated Debt Securities have been duly
authorized by the Company and, when validly executed by the Debt Trustee,
authenticated in the manner provided for in the Indenture and delivered
against payment therefore as described in the Prospectus, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions, and will
be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform in all material respects to the description
thereof contained in the Prospectus.
(xv) None of the Offerors is, and after giving effect to
the offering and sale of the Preferred Securities as herein contemplated
and the application of the net proceeds therefrom as described in the
Prospectus, none of the Offerors will be, an "investment company" or an
entity "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(xvi) No authorization, approval, consent or order of any
court or insurance regulatory authority or other governmental authority
or agency is necessary in connection with the issuance and sale of the
Common Securities or the Common Securities Guarantee or the offering,
issuance or sale of the Securities as contemplated hereby, except such as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws and the qualification of the Declaration, the Preferred
Securities Guarantee Agreement and the Indenture under the 1939 Act.
(xvii) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has not
been (i) (x) any material change in the capital stock or (y) any increase
in the long-term debt of the Company or any of its subsidiaries in excess
of $10 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 $15 million, in each case otherwise than
as set forth or contemplated in the Prospectus.
(xviii) 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 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.
(xix) Each of Protective Life Insurance Company
("Protective Life") 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, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction.
(xx) Each of the Material Subsidiaries 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, with corporate
power 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 reasonably be expected to 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 such Material Subsidiary 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 would 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.
(xxi) Except as disclosed in the Prospectus, there are no
actions, suits or proceedings before or by any government, governmental
instrumentality or court, domestic or foreign, now pending to which the
Company or any of its subsidiaries is a party or of which any property or
assets 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, individually or in the aggregate, have a
material adverse effect on the consolidated financial position,
stockholders' equity (if applicable) or results of operations of the
Company and its subsidiaries, or materially adversely affect the ability
of the Company to perform its obligations hereunder or under the Pricing
Agreement or the consummation of the transactions contemplated by this
Agreement or the Pricing Agreement; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xxii) The Trust is not in violation of the Declaration or
its certificate of trust filed with the State of Delaware on July 1, 1997
(the "Certificate of Trust"), and neither the Company nor any Material
Subsidiary is in violation of its charter or by-laws. None of the
Company, any Material Subsidiary or the Trust is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other
agreement or instrument to which it is a party or by which it may be
bound, or to which any of its property or assets may be subject, except
for such defaults that would not be reasonably expected to result in any
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and the
Material Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business. None of the execution,
delivery and performance of this Agreement, the Pricing Agreement, the
Declaration, the Preferred Securities, the Common Securities, the
Indenture, the Subordinated Debt Securities, the Guarantee Agreements and
the Guarantees and the consummation of the transactions contemplated
hereby and thereby and compliance by the Offerors with their respective
obligations hereunder and thereunder did or will result in a breach of
any of the terms or provisions of, or constitute a default or require the
consent of any party under, (A) the Certificate of Trust of the Trust or
the charter or by-laws of the Company or any Material Subsidiary, (B) any
contract, indenture, mortgage, note, lease, agreement or other instrument
to which any of the Trust, the Company and the Material Subsidiaries is a
party or by which any of them may be bound, or any applicable law, rule
or regulation or any judgment, order or decree of any government,
governmental instrumentality, insurance regulatory authority or court,
domestic or foreign, having jurisdiction over the Trust, the Company or
any Material Subsidiary or any of their respective property or assets, or
did or will result in the creation or imposition of any lien on the
property or assets of the Trust, the Company or any Material Subsidiary,
except, in the case of the foregoing clause (B), for such defaults,
consents or liens which would not reasonably be expected to result in a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and the
Material Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business.
(b) Each certificate signed by any officer of the Company or a
Regular Trustee and delivered to the Representatives or to counsel for the
Underwriters shall be deemed to be a representation and warranty by the Company
or the Trust, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) The terms and rights of the Preferred Securities shall be as
specified in the Pricing Agreement.
(b) Payment of the purchase price for, and delivery of
certificates for, the Preferred Securities shall be made at the office of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Representatives and
the Offerors, at 10:00 A.M. New York time on the third business day (unless
postponed in accordance with the provisions of Section 10) after execution of
the Pricing Agreement, or such other time not later than two business days after
such date as shall be agreed upon by the Representatives, the Trust and the
Company (such time and date of payment and delivery being herein called "Closing
Time"). Payment for the Preferred Securities purchased by the Underwriters shall
be made to the Trust by wire transfer of immediately available funds to a
bank account designated by the Trust, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for the
Preferred Securities to be purchased by them.
(c) Subject to the terms and provisions of the Declaration,
certificates for the Preferred Securities to be purchased by the Underwriters
shall be in such denominations and registered in such names as the Underwriters
may request in writing at least two business days before the Closing Time.
(d) It is understood that each Underwriter has authorized ▇▇▇▇▇▇▇
▇▇▇▇▇, for its account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Preferred Securities that it has agreed to purchase.
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as Representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Preferred Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Time, but such payment shall not relieve
such Underwriter from its obligations hereunder.
At the Closing Time, the Company will pay, or cause to be paid,
the commission payable at such time to the Underwriters under this Section 2 to
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated by wire transfer of
immediately available funds to a bank account designated by ▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 3. COVENANTS OF THE OFFERORS. The Offerors agree with each
Underwriter as follows:
(a) Promptly following the execution of this Agreement, the
Offerors will cause the Prospectus to be filed with the Commission pursuant to
Rule 424 of the 1933 Act Regulations and the Offerors will promptly advise the
Underwriters when such filing has been made. The Offerors will comply with the
requirements of Rule 430A and will notify the Representatives immediately, and
confirm the notice in writing, of (i) the effectiveness of the Registration
Statement and any amendment thereto (including any post-effective amendment),
(ii) the receipt of any comments from the Commission, (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose and
(v) the issuance by any state securities commission or other regulatory
authority of any order suspending the qualification or the exemption from
qualification of the Securities under state securities or blue sky laws or the
initiation or threatening of any proceeding for such purpose. The Offerors will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is, issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Offerors will give the Representatives notice of their
intention to file or prepare (i) any amendment to the Registration Statement
(including any post-effective amendment), (ii) any amendment or supplement to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, or (iii) any document that would as a
result thereof be incorporated by reference in the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, and will furnish the Underwriters
with copies of any such amendment, supplement or other document within a
reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such
amendment, supplement or other document or use any such prospectus to which
counsel for the Underwriters shall reasonably object. Subject to the foregoing,
following the execution and delivery of the Pricing Agreement, the Offerors will
promptly prepare a supplement to the Prospectus to reflect the terms of the
Preferred Securities and the terms of the offering contemplated by this
Agreement and the Pricing Agreement. The Offerors will file such Prospectus as
so supplemented pursuant to Rule 424(b) under the Act within the time periods
provided by such Rule and Rule 430A(a)(3) under the Act.
(c) The Offerors will deliver to the Representatives and counsel
for the Underwriters, without charge, as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference therein), executed signature pages thereof
and signed copies of all consents and certificates of experts as the
Representatives may reasonably request. If applicable, the copies of the
Registration Statement and each amendment thereto furnished to the Underwriters
will 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 Offerors will deliver to each Underwriter, without charge,
as many copies of each preliminary prospectus as such Underwriter may reasonably
request, and the Offerors hereby consent to the use of such copies for purposes
permitted by the 1933 Act. The Offerors will furnish to each Underwriter,
without charge, during the period when the Prospectus is required to be
delivered under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. If
applicable, the Prospectus and any amendments or supplements thereto furnished
to the Underwriters will 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.
(e) The Offerors will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Registration Statement and the Prospectus. If, at any time
when the Prospectus is required by the 1933 Act to be delivered in connection
with offers or sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Offerors, to amend the Registration Statement in order
that the Registration Statement 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 or to amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in light of the circumstances under which they
were made not misleading or if it shall be necessary, in the opinion of either
such counsel, to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Offerors will, subject to paragraph (b) above, promptly
prepare and file with the Commission such amendment or supplement which will
correct such untrue statement or omission or effect such compliance and the
Offerors will furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement as the Underwriters may reasonably request.
(f) The Company will, on behalf of the Trust, timely file such
reports pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement
covering a twelve-month period beginning after the "effective date" (as defined
in Rule 158 of the 1933 Act Regulations) of the Registration Statement and
ending not later than 15 months thereafter, that shall satisfy the provisions of
Section 11(a) of the 1933 Act and said Rule 158.
(g) The Offerors will use their best efforts to effect the listing
of the Preferred Securities (including the Preferred Securities Guarantee) on
the New York Stock Exchange and to cause the Securities to be registered under
the 1934 Act. If the Preferred Securities are exchanged for Subordinated Debt
Securities, the Company will use its best efforts to effect the listing of the
Subordinated Debt Securities on the exchange on which the Preferred Securities
were then listed and to cause the Subordinated Debt Securities to be registered
under the 1934 Act.
(h) During a period of 90 days from the date of the Pricing
Agreement, neither the Trust nor the Company will, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, or enter into any agreement to
sell, any Preferred Securities, any security convertible into or exchangeable
into or exercisable for Preferred Securities or the Subordinated Debt Securities
or any subordinated debt securities substantially similar to the Subordinated
Debt Securities or equity securities substantially similar to the Preferred
Securities.
(i) The Offerors will use the net proceeds received by them from
the sale of the Securities in the manner specified in the Prospectus under "Use
of Proceeds."
(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of each Offeror's obligations under this Agreement,
including, without limitation, expenses related to the following, if incurred:
(i) the preparation, delivery, printing and filing of the Registration Statement
and Prospectus as originally filed (including exhibits) and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificates for the
Preferred Securities, (iii) the fees and disbursements of the Company's and the
Trust's counsel and accountants, (iv) the qualification, as applicable, of the
Securities under state securities laws, including filing fees and the reasonable
fees and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for
the Underwriters, in connection therewith and in connection with the preparation
of any blue sky survey and any legal investment survey, (v) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus
and of the Prospectus and any amendments or supplements thereto, (vi) the
preparation and delivery to the Underwriters of copies of any blue sky survey
and any legal investment survey, (vii) the filing fees incident to, and the fees
and disbursements of counsel to the Underwriters in connection with, the review,
if any, by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Pre-
ferred Securities, (viii) the fees and expenses of the Trustees and the Debt
Trustee, including the fees and disbursements of counsel for the Trustees and
the Debt Trustee, (ix) any fees payable in connection with the rating of the
Preferred Securities by nationally recognized statistical rating organizations,
(x) the fees and expenses incurred in connection with the listing of the
Preferred Securities and, if applicable, the Subordinated Debt Securities on the
New York Stock Exchange, (xi) the cost and charges of the Company's counsel,
accountants and other advisors or agents (including the transfer agents and
registrars), (xii) the cost of qualifying the Preferred Securities with the
Depository Trust Company, (xiii) any fees payable to the Commission, and (xiv)
all other costs and expenses incident to the performance of the Offerors'
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that except as provided in this Section 4,
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 or marketing expenses in connection with any offers
they may make.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 (other than Section 5(h)) or Section
9(a) (i) or the first clause of Section 9(a) (iii) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Preferred Securities pursuant to
this Agreement and the Pricing Agreement are subject to the accuracy of the
representations and warranties of the Offerors contained herein or in
certificates of any officer of the Company or any subsidiary of the Company or
any Trustee delivered pursuant to the provisions hereof, to the performance by
the Offerors of their obligations hereunder, and to the following further
conditions:
(a) At the time of execution and delivery of the Pricing Agreement
and at Closing Time no stop order suspending the effectiveness of the
Registration Statement or any part hereof shall have been issued under the 1933
Act or proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
Prospectus containing information relating to the description of the Securities,
the specific method of distribution and similar matters shall have been filed
with the Commission in accordance with Rule 424(b) (1), (2), (3), (4) or (5) as
applicable.
(b) At Closing Time the Representatives shall have received:
(1) The signed opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, Esq., Senior Vice President, Secretary and General Counsel of the Company,
or any successor having substantially equivalent responsibilities with the
Company, together with signed, or reproduced copies of such opinion for each of
the other Underwriters, in form and in substance reasonably satisfactory to
counsel for the Underwriters, 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) Each of the documents incorporated by reference in
the Registration Statement or the Prospectus at the time they were filed
or became effective (other than the financial statements and the notes
thereto, the financial statement schedules, and any other financial or
statistical data included or incorporated by reference therein, as to
which such counsel need express no opinion) complied as to form in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations, as applicable; and such counsel has no reason to believe
that any of such documents, when such documents became effective or were
so filed, as the 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) All of the issued and outstanding Common Securities
are directly owned by the Company free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(v) The execution, delivery and performance of this
Agreement, the Pricing Agreement, the Declaration, the Preferred
Securities, the Common Securities, the Indenture, the Subordinated Debt
Securities, the Guarantee Agreements, and the Guarantees and the
consummation of the transactions contemplated hereby and thereby, and the
compliance by each of the Offerors with their respective obligations
hereunder and thereunder do not and will not (a) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, agreement,
note, lease or other agreement or instrument known to such counsel to
which any of the Trust, the Company or any Material Subsidiary is a party
or by which any of them may be bound or to which any of their property or
assets 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 Trust,
the Company and the Material Subsidiaries taken as a whole or would not
reasonably be expected to have a material adverse effect on the issuance
or sale of the Securities, or (b) result in any violation of the
provisions of (x) the charter or by-laws of the Company or either of the
Material Subsidiaries or the Certificate of Trust of the Trust or (y)
any statute, rule or regulation known to such counsel of any court or
insurance regulatory authority or other governmental agency or body
having jurisdiction over the Trust, the Company or any of the Material
Subsidiaries or any of their respective properties or assets, except,
with respect to clause (y) above, 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 the
Material Subsidiaries taken as a whole or the Trust or would not affect
the validity of or otherwise have a material adverse effect on the
issuance or sale of the Securities; and except that for purposes of
this paragraph (v) 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 Offerors of their obligations hereunder is concerned, such
counsel need not express any opinion as to the Bankruptcy Exceptions.
(vi) 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
or the Trust is required for the issue or sale of the Common Securities
or the Common Securities Guarantee or the offering, issuance or sale of
the Securities or the consummation by the Company or the Trust of the
transactions contemplated hereby, except such as have been, or will have
been prior to Closing Time, obtained under the 1933 Act and the 1939 Act
and such consents, approvals, Orders, authorizations, registrations or
qualifications as may be required under state securities laws 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, would not reasonably be expected to have a
material adverse effect on the financial condition or results of
operation of the Company and its subsidiaries taken as a whole or the
Trust.
(vii) There are no legal or governmental proceedings
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.
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 Representation Date and the
Closing Time (other than the financial statements and related notes, the
financial statement schedules and other financial and statistical data included
therein and the statements of eligibility of the respective Trustees on Form T-1
under the 1939 Act, as to which she need express no belief) 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.
In rendering the foregoing opinions, (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 of Delaware or Federal Law, upon the opinion of
▇▇▇▇▇ ▇▇▇▇, Esq., Senior Associate Counsel of the Company delivered in
accordance with Section 5(b)(2) and the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
P.A. delivered in accordance with Section 5(b)(3), (B) 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 (C) 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.
(2) The signed opinion, dated as of the Closing Time, of ▇▇▇▇▇ ▇▇▇▇,
Esq., Senior Associate Counsel of the Company, together with signed, or
reproduced, copies of such opinion for each of the other Underwriters, in form
and in substance reasonably satisfactory to counsel for the Underwriters, to the
effect that:
(i) 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 or incorporated by reference therein, as to
which no opinion is being expressed) comply as to form in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations,
the 1939 Act and the 1939 Act Regulations; and the Declaration, the
Indenture, the Guarantee Agreements and the Statements of Eligibility on
Forms T-1 with respect to each of the Institutional Trustee, the Debt
Trustee and the Guarantee Trustee filed with the Commission as part of
the Registration Statement comply as to form in all material respects
with the requirements of the 1939 Act and the 1939 Act Regulations.
(ii) The Registration Statement has become effective
under the 1933 Act; the Prospectus has been filed pursuant to Rule 424 of
the 1933 Act Regulations, 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 1933 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 Securities to the Underwriters as provided in
the Agreement and the Pricing Agreement, except as may be required by
state securities laws.
(iii) The Declaration has been duly authorized, executed
and delivered by the Company and the Trustees and, assuming due
authorization, execution and delivery by the Institutional Trustee and
the Delaware Trustee, is a valid and binding obligation of the Company,
enforceable against the Company and each of the Regular Trustees in
accordance with its terms, except to the extent that enforcement thereof
may be limited
by the Bankruptcy Exceptions; and the Declaration has been duly qualified
under the 1939 Act.
(iv) Each of the Offerors meets the requirements for use
of Form S-3 under the 1933 Act Regulations.
(v) The Common Securities, the Preferred Securities, the
Subordinated Debt Securities, the Declaration, the Indenture and each of
the Guarantee Agreements conform in all material respects to the
descriptions thereof contained in the Prospectus.
(vi) The statements in the Prospectus under the captions
"Description of Securities," "Description of the Preferred Securities
Guarantee," "Description of Debt Securities of Protective" and "Effect of
Obligations under the Subordinated Debt Securities and the Preferred
Securities Guarantees," insofar as such statements constitute summaries
of certain provisions of the documents and laws referred to therein, have
been reviewed by such counsel and fairly summarize the material
provisions of such documents and laws.
(vii) Each of this Agreement and the Pricing Agreement has
been duly authorized, executed and delivered by each of the Trust and the
Company.
(viii) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the Preferred
Securities Guarantee and the Preferred Securities Guarantee Agreement,
assuming they are duly authorized, executed and delivered by the
Guarantee Trustee, constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions; and the Preferred Securities Guarantee Agreement
has been duly qualified under the 1939 Act.
(ix) The Indenture has been duly executed and delivered
by the Company and, assuming due authorization, execution, and delivery
thereof by the Debt Trustee, is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent' that enforcement thereof may be limited by the
Bankruptcy Exceptions; and the Indenture has been duly qualified under
the ▇▇▇▇ ▇▇▇.
(x) The Subordinated Debt Securities are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Debt Trustee in
the manner provided for in the Indenture and delivered against payment
therefor as provided in this Agreement and the Pricing Agreement, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions.
(xi) None of the Offerors is, and following consummation
of the transactions contemplated hereby and the application of the
proceeds therefrom in the manner set forth in the Prospectus will be, an
"investment company" or under the "control" of an "investment company" as
such terms are defined in the 1940 Act.
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 paragraph (vi) 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 her attention that would cause her to believe that the Registration
Statement or the Prospectus, as amended or supplemented, as of the
Representation Date and the Closing Time (other than the financial statements
and related notes, the financial statement schedules, and other financial and
statistical data included or incorporated by reference therein as to which she
need express no belief) 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.
In rendering the foregoing opinion, such counsel may state that she is
admitted to the Bar of the State of New York and that she expresses no opinion
as to the laws of any jurisdiction other than the Federal laws of the United
States and the laws of the States of New York. In giving such opinion, such
counsel may rely, as to matters of Delaware law, upon the opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the Offerors, in which case
the opinion shall state that she believes that you and she are entitled to so
rely.
(3) The signed opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the Offerors, together with
signed or reproduced copies of such opinion for each of the other Underwriters,
in form and substance reasonably satisfactory to counsel for the Underwriters,
to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act and
has the business trust power and authority to conduct its business as
described in the Registration Statement and the Prospectus.
(ii) Assuming that the Declaration has been duly
authorized, executed and delivered by the Company and the Trustees, the
Declaration constitutes a valid and binding obligation of the Trustees
and the Company and is enforceable against the Trustees and the Company
in accordance with its terms, except that to the extent that
enforceability thereof may be limited by the Bankruptcy Exceptions.
(iii) Under the Delaware Act and the Declaration, the
Trust has the power to (i) execute and deliver, and to perform its
obligations under, this Agreement and the Pricing Agreement and (ii)
issue, and perform its obligations under, the Common Securities and the
Preferred Securities.
(iv) The execution and delivery by the Trust of this
Agreement and the Pricing Agreement, and the performance by the Trust of
its obligations hereunder, have been duly authorized by all necessary
action on the part of the Trust.
(v) The Preferred Securities have been duly authorized
by the Declaration and, when executed by the Trust and the Institutional
Trustee in accordance with the Declaration and delivered against payment
therefor in accordance with the terms of this Agreement and the Pricing
Agreement, will be validly issued and, subject to the
qualifications hereinafter expressed in this paragraph (v), fully paid
and nonassessable undivided beneficial interests in the assets of the
Trust; the holders of the Preferred Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware; said counsel
may note that the holders of the Preferred Securities may be obligated to
make payments as set forth in the Declaration.
(vi) The Common Securities have been duly authorized by
the Declaration and, when issued, executed and authenticated in
accordance with the terms of the Declaration, and delivered and paid for
as set forth in the Registration Statement, will be validly issued,
undivided beneficial interests in the assets of the Trust.
(vii) Under the Delaware Act and the Declaration, the
issuance of neither the Common Securities nor the Preferred Securities is
subject to preemptive or other similar rights.
(viii) The issuance and sale by the Trust of the Preferred
Securities and Common Securities, the execution, delivery and performance
by the Trust of this Agreement and the Pricing Agreement, the
consummation of the transactions contemplated hereby and the compliance
by the Trust with its obligations hereunder will not violate any of the
provisions of the Certificate of Trust or Declaration or any applicable
Delaware law or administrative regulation.
(ix) None of the execution and delivery by the Trust of,
or the performance by the Trust of its obligations under, this Agreement
and the Pricing Agreement, the issuance and sale of the Preferred
Securities by the Trust in accordance with the terms of this Agreement
and the Pricing Agreement and the consummation of the other transactions
contemplated hereby, will contravene any provisions of applicable
Delaware law or administrative regulations or the Certificate of Trust or
the Declaration.
(4) The signed opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., counsel to Wilmington Trust Company, as Institutional
Trustee under the Declaration and Guarantee Trustee under the Preferred
Securities Guarantee Agreements, together with signed or reproduced copies of
such opinion for each of the other Underwriters, in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect that:
(i) Wilmington Trust Company is a Delaware banking
corporation with trust powers, duly organized, validly existing and in
good standing under the laws of the State of Delaware with all necessary
power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of the Declaration and the Preferred
Securities Guarantee Agreement.
(ii) The execution, delivery and performance by the
Institutional Trustee of the Declaration and the execution, delivery and
performance by the Guarantee Trustee of the Preferred Securities
Guarantee Agreement have been duly authorized by all necessary corporate
action on the part of the Institutional Trustee and the Guarantee
Trustee, respectively. The Declaration and the Preferred Securities
Guarantee Agreement have been duly executed and delivered by the
Institutional Trustee and the Guarantee Trustee, respectively.
(iii) The execution, delivery and performance of the
Declaration and the Preferred Securities Guarantee Agreement by the
Institutional Trustee and the Guarantee Trustee, respectively, do not
conflict with or constitute a breach of the Articles of Organization or
Bylaws of the Institutional Trustee and the Guarantee 'Trustee,
respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any Delaware or federal banking authority
is required for the execution, delivery or performance by the
Institutional Trustee of the Declaration and the Preferred Securities
Guarantee Agreement.
(5) The signed opinion of Debevoise & ▇▇▇▇▇▇▇▇, special tax counsel to
the Offerors, together with signed or reproduced copies of such opinion for each
of the other Underwriters, generally to the effect that (i) the Trust will be
classified as a grantor trust and not as an association taxable as a corporation
for federal income tax purposes and (ii) the statements set forth in the
Prospectus relating to the issuance of the Preferred Securities under the
caption "Federal Income Tax Consequences," to the extent that such statements
relate to matters of law or legal conclusion, constitute the opinion of
Debevoise & ▇▇▇▇▇▇▇▇, in each case based upon current law and the assumptions
stated or referred to therein. Such opinion may be conditioned on, among other
things, the initial and continuing accuracy of the facts, financial and other
information, covenants and representations set forth in certificates of officers
of the Company and the Trust and other documents deemed necessary for such
opinion.
(6) The signed opinion, dated as of the Closing Time, of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters, in form
and substance reasonably satisfactory to the Underwriters, with respect to the
incorporation and legal existence of the Company, the Preferred Securities, the
Indenture, the Preferred Securities Guarantee Agreement, this Agreement, the
Pricing Agreement, the Registration Statement, the Prospectus and other related
matters as the Representatives may require. In giving their opinion, Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP may rely as to certain matters of Delaware law
upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A. Delaware counsel for the
Offerors, which shall be delivered in accordance with Section 5(b)(3) hereof.
(c) Between the Representation Date and the Closing Time, no
material adverse change shall have occurred in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust or the Company and its subsidiaries considered as one enterprise, whether
or not in the ordinary course of business.
(d) At the Closing Time, the Representatives shall have
received a certificate of the President or a Vice-President of the Company and
of the Chief Financial Officer or Chief Accounting Officer of the Company and a
certificate of a Regular Trustee of the Trust, each dated as of the Closing
Time, to the effect that (i) since the Representation Date there has been
no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Trust or the
Company and its subsidiaries considered as one enterprise, whether or not in
the ordinary course of business, (ii) the representations and warranties in
Section 1 hereof are true and correct as though expressly made at and as of
the Closing Time, (iii) each of the Trust and the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to their knowledge,
threatened by the Commission.
(e) The Representatives shall have received letters from the
Company's independent public accountants (dated the date of the Pricing
Agreement and the Closing Time, respectively) in the form attached hereto as
Exhibit B.
(f) At Closing Time, counsel for the Underwriters shall have
been furnished with such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated or in order to evidence the
accuracy of any of the representations or warranties or statements of either of
the Offerors, the performance of the covenants of the Offerors, or the
fulfillment of any of the conditions herein contained.
(g) At Closing Time, the Preferred Securities shall be rated at
least "Baaa1" by Moody's Investor's Service Inc. and "BBB+" by Standard & Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., and the Trust shall have
delivered to the Representatives a letter, dated the Closing Time, from such
nationally recognized statistical rating agencies, or other evidence
satisfactory to the Representatives, confirming that the Preferred Securities
have such ratings; and there shall not have occurred any decrease in the ratings
of any securities of the Company or of the Preferred Securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 1933 Act Regulations) and such organization shall not
have publicly announced that it has under surveillance or review its rating of
any of the securities of the Company or of the Preferred Securities.
(h) The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement and the Pricing
Agreement may be terminated by the Underwriters by notice to the Company, at any
time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and except that Sections 1, 6, 7 and 8 hereof shall survive any such
termination and will remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all losses, claims, expenses, damages
and liabilities whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information included in the Prospectus that was omitted from the
Registration Statement at the time it became effective but that is deemed
to be part of such Registration Statement at the time it became effective
(a) pursuant to paragraph (b) of Rule 430A or (b) pursuant to paragraph
(d) of Rule 434, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all losses, claims, expenses, damages
and liabilities whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; PROVIDED that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Offerors; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), as incurred,
which expenses are reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that the foregoing indemnity agreement shall not apply to any
loss, claim, expense, damage or liability (x) to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Offerors by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ specifically
for inclusion and actually included therein and (y) with respect to any
preliminary prospectus to the extent that any such loss, claim, expense, damage
or liability of such Underwriter results from the fact that such Underwriter
sold Preferred Securities to a person as to whom it shall be established by the
Company that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented) in any case where such delivery is required by the 1933 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
and the loss, claim, expense, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
preliminary prospectus that was corrected in the Prospectus.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, the Trust, the Trustees and each of the
Company's directors, each of the Company's officers who signed the Registration
Statement and each person, if any, who controls
the Company or the Trust within the meaning of Section 15 of the 1933 Act, to
the same extent as the foregoing indemnity from the Offerors to each
Underwriter, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Prospectus in reliance
upon and in conformity with information furnished in writing to the Offerors
by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ specifically for inclusion and
actually included therein.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an 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 that it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to paragraph 6(a) above, counsel to the indemnified parties shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
paragraph 6(b) above, counsel to the indemnified parties shall be selected by
the Offerors. An indemnifying party may participate at its own expense in the
defense of such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnifying party) also be
counsel to the indemnified party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
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 6 or Section 7 hereof (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 at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a) (ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a) (ii)
effected without its consent if such indemnifying party (x) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (y) provides written notice to the indemnified
party substantiating the unpaid balance as unreasonable, in each case prior to
the date of such settlement.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand from the offering of the Securities pursuant to
this Agreement and the Pricing Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Offerors on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and
the Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement and the Pricing Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities pursuant to this Agreement and the Pricing Agreement
(before deducting expenses) received by the Offerors and the total underwriting
discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Offerors on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 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 Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company and each Trustee of the Trust who signed the
Registration Statement, and each person, if any, who controls the Company and
the Trust within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Offerors. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Preferred Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Trust, the Company or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Trust, the Company, any Underwriter or any controlling person thereof, and will
survive delivery of and payment for the Securities.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement and the
Pricing Agreement, by notice to the Company and the Trust, at any time at or
prior to the Closing Time, (i) if there has been, since the time of execution of
this Agreement or the Pricing Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of, the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) if there has
occurred any material adverse change in the financial markets in the United
States or internationally or any outbreak of hostilities or escalation of
existing hostilities or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Securities,
or enforce contracts for the sale of the Securities, (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by any of such exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority or (iv) if a banking
moratorium has been declared by either Federal, Alabama, Delaware or New York
State authorities.
This Agreement and the Pricing Agreement may also terminate
pursuant to the provisions of Section 5, with the effect stated in such Section.
(b) If this Agreement and the Pricing Agreement are terminated
pursuant to this Section 9, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and except that
Sections 1, 6, 7 and 8 shall survive any such termination and will remain in
full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Preferred
Securities that it or they are obligated to purchase under this Agreement and
the Pricing Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other Underwriter, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then the Company
and the Trust shall have the right, within 24 hours after the expiration of
such previous 24-hour period, to procure another party or other parties
reasonably satisfactory to the Representatives to purchase the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, the Company and the Trust shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Preferred Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Preferred Securities, this Agreement and the Pricing Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement and the Pricing Agreement, either the
Representatives or the Offerors shall have the right to postpone Closing Time
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given, upon receipt,
if delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to the Representatives at ▇▇▇▇▇▇▇
▇▇▇▇▇ World Headquarters, North Tower, World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇), attention of ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇), attention of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.; and notices to the Trust and the Company shall be
directed to them at Protective Life Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇), attention of ▇▇▇▇▇▇▇
▇. ▇▇▇▇, Senior Vice President, General Counsel and Secretary.
SECTION 12. PARTIES. This Agreement and the Pricing Agreement shall
inure to the benefit of and be binding upon the Underwriters and the Offerors
and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Offerors and
their respective successors and the controlling persons and officers, directors
and trustees referred to in Section 6 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or the Pricing Agreement or any
provision herein or therein contained. This Agreement and the Pricing
Agreement and all conditions and provisions hereof and thereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Offerors
and their respective successors, and said controlling persons and officers,
directors and trustees and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the provisions thereof
relating to conflicts of law. Specified times of day refer to New York City
time.
SECTION 14. COUNTERPARTS. Each of this Agreement and the Pricing
Agreement may be executed by any one or more of the parties hereto 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.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President,
Secretary, and General Counsel
PLC CAPITAL TRUST III
By:
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
-----------------------------------------
Name:
Authorized Signatory
For themselves and as Representatives of the other
Underwriters named in Schedule A hereto.
EXHIBIT A
4,000,000 Preferred Securities
PLC CAPITAL TRUST III
(A Delaware Trust)
7 1/2% Trust Originated Preferred Securities(SM) ("TOPrS(SM)"*)
(Liquidation Amount of $25.00 per Preferred Security)
PRICING AGREEMENT
------------------------
August 17, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated as of August
17, 2001 (the "Purchase Agreement"), relating to the purchase by the several
Underwriters named in Schedule A thereto, for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. are acting as Representatives (the
"Representatives"), of the above 4,000,000 7 1/2% Trust Originated Preferred
Securities (the "Preferred Securities"), of PLC Capital Trust III, a Delaware
business trust (the "Trust").
Pursuant to Section 2 of the Purchase Agreement, the Trust and
Protective Life Corporation, a Delaware corporation (the "Company"), agree
with each Underwriter as follows:
1. The initial public offering price per security for the
Preferred Securities, determined as provided in said Section 2, shall be
$25.00.
---------------------------
* (SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
2. The purchase price per security for the Preferred Securities
to be paid by the several Underwriters shall be $25.00, being an amount equal
to the initial public offering price set forth above.
3. The commission payable to the Underwriters to be paid by the
Company shall be $0.7875 per Preferred Security (or a total of $3,150,000).
4. The underwriters will purchase the Preferred Securities in
the amounts set forth opposite their respective names on Schedule I hereto.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
PROTECTIVE LIFE CORPORATION
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President,
Secretary, and General Counsel
PLC CAPITAL TRUST III
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
-----------------------------------------
Name:
Authorized Signatory
For themselves and as Representatives of the other
Underwriters named in Schedule A hereto
NUMBER OF TRUST
UNDERWRITER PREFERRED SECURITIES
----------- --------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 1,085,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 1,070,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. 1,070,000
ABN AMRO Incorporated 125,000
Bear, ▇▇▇▇▇▇▇ & Co., Inc. 125,000
First Union Securities, Inc. 125,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 125,000
Wachovia Securities, Inc. 125,000
BB&T Capital Markets, a Division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇ 15,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc. 15,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated 15,000
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc. 15,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 15,000
McDonald Investments Inc. 15,000
Quick & ▇▇▇▇▇▇, Inc. 15,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 15,000
SunTrust Capital Markets, Inc. 15,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. 15,000
Total 4,000,000
Exhibit B
[Comfort Letter]
