EXHIBIT 1
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PLC CAPITAL TRUST I
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___% Trust Originated Preferred Securities(Servicemark)*
("TOPrS(Servicemark")
guaranteed to a limited extent by
PROTECTIVE LIFE CORPORATION
PURCHASE AGREEMENT
Dated: April __, 1997
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* (Servicemark) "Trust Originated Preferred Securities" and "TOPrS" are
service marks of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
3,000,000 Preferred Securities
PLC CAPITAL TRUST I
(A Delaware Trust)
____% Trust Originated Preferred Securities(Servicemark)* ("TOPrS(Servicemark")
(Liquidation Amount of $25.00 per Preferred Security)
PURCHASE AGREEMENT
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April __, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.,
As the Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
PLC Capital Trust I (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. ▇▇.▇▇. 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. Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
and ▇▇▇▇▇▇▇▇▇▇▇ & Co., 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 3,000,000 ____% 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
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* (Servicemark)"Trust Originated Preferred Securities" and "TOPrS" are
service marks of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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Securities Guarantee Agreement, to be dated as of April __, 1997 (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 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."
The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-25027) covering the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the sale of 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
either (i) 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 Rule 424(b) ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Offerors have elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in any prospectus or in any Term Sheet, as the case may be,
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 (a) pursuant to paragraph (b) of Rule 430A is referred to as
"Rule 430A Information" or (b) pursuant to Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such Rule 424(b) prospectus has been
filed and any prospectus that omitted the Rule 430A Information or the Rule 434
Information, as applicable, and in each case 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 and
the Rule 434 Information is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
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." If Rule 434 is
relied on, the term Prospectus shall refer to the preliminary
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prospectus dated April __, 1997, together with the Term Sheet, and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet 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 has been executed and delivered and the
Declaration (as defined herein), the Indenture (as defined herein) and the
Preferred Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). 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 of as of April __, 1997 (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 $__________
aggregate principal amount of ____% Subordinated Debentures due 2027, Series B
(the "Subordinated Debt Securities") 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 April __, 1997 (the "Declaration"), among the Company, as
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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 AmSouth Bank of Alabama (as successor by conversion of charter
to AmSouth Bank, N.A.), as trustee (the "Debt Trustee"), as supplemented by
(i) Supplemental Indenture No. 1, dated as of June 9, 1994 ("Supplemental
Indenture No. 1"), (ii) Supplemental Indenture No. 2, dated as of August 1, 1994
("Supplemental Indenture No. 2"), and (iii) Supplemental Indenture No. 3, to be
dated as of April __, 1997 ("Supplemental Indenture No.3" 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 and as of the Closing Time (as hereinafter defined) 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. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act. No stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
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, the
Rule 462(b) Registration Statement, if any, 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 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 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 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
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the light of the circumstances under which they were made, not misleading;
provided, however, the Offerors make no representations or warranties as to
(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 or omitted from the
Registration Statement or the Prospectus made 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. If
the Offerors elect to rely upon Rule 434 of the 1933 Act Regulations, the
Offerors will comply with the requirements of Rule 434.
(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 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) Coopers & ▇▇▇▇▇▇▇ L.L.P., 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
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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 in the Registration Statement.
(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 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 generally accepted
accounting principles.
(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 therefor 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 duly authorized, executed and
delivered by each of the Offerors.
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(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 therefor 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
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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 and Supplemental
Indenture No. 2 does constitute, and Supplemental Indenture No. 3, 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 therefor 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 upon the issuance 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," as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xvi) No authorization, approval, consent or order of any
court or 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
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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 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) Protective Life Insurance Company ("Protective Life
Insurance") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction.
(xx) Protective Life Insurance is duly organized and
licensed as an insurance company in its state of incorporation and is duly
licensed or authorized as an insurer in each other jurisdiction where it
is required to be so licensed or authorized, 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
Protective Life Insurance has received any notification from any
insurance regulatory authority to the effect that any additional
authorization, approval, order, consent, license,
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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; 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 April 10, 1997
(the "Certificate of Trust"), and neither the Company nor any subsidiary of
the Company which is a "significant subsidiary" (as such term is defined in
Rule 405 of the 1933 Act Regulations) (each such subsidiary, a "Significant
Subsidiary") is in violation of its charter or by-laws. None of the
Company, any Significant 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 Significant 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
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
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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 Significant Subsidiary, (B)
any contract, indenture, mortgage, note, lease, agreement or other
instrument to which any of the Trust, the Company and the Significant
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 or court, domestic or foreign,
having jurisdiction over the Trust, the Company or any Significant
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 Significant 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 Significant
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) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at the price of $25 per Preferred
Security, an aggregate of 3,000,000 Preferred Securities (except as otherwise
provided herein, to be allocated to the several Underwriters in the number of
Preferred Securities set forth in Schedule A opposite the name of each such
Underwriter).
(b) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Debt Securities of the
Company, the Company hereby agrees to pay at Closing Time to the
Representatives, for the accounts of the several Underwriters, a commission of
$_____ per Preferred Security purchased by the Underwriters by wire transfer of
immediately available funds to a bank account designated by the Representatives;
provided that such commission for sales of ____ or more Preferred Securities to
a single purchaser will be $____ per Preferred Security purchased by the
Underwriters.
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(c) Payment of the purchase price for, and delivery of certificates
for, the Preferred Securities shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 April ___, 1997, or such later time and date not more than two
business days after such date as shall be agreed upon by the Representatives and
the Offerors (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.
(d) 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.
(e) 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.
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/or Rule 434, if and as applicable, 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 or filing under Rule 462(b)), (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
13
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 and any filing under Rule 462(b)), (ii)
any Term Sheet or 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, will furnish the Underwriters with copies of any such Rule 462(b)
Registration Statement, Term Sheet, 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 Rule 462(b) Registration Statement, Term
Sheet, amendment, supplement or other document or use any such prospectus to
which the Representatives or counsel for the Underwriters shall reasonably
object.
(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 Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company 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.
14
(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 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
for the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the ▇▇▇▇ ▇▇▇.
(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 ▇▇▇▇ ▇▇▇.
(h) Until July __, 1997, 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 or exercisable for Preferred Securities or the
Subordinated Debt Securities or any subordinated debt securities substantially
similar to the Subordinated Debt Securities or
15
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) If the Offerors elect to rely upon Rule 462(b), the Offerors
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 of the 1933 Act Regulations by the earlier of (i) 10:00 p.m. New York City
time on the date hereof and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(k) 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 (including any filing under Rule 462(b)), (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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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
(including any filing under Rule 462(b)), of each preliminary prospectus, any
Term Sheet and of the Prospectus and any amendments or supplements thereto, (vi)
the preparaton 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 Preferred 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,
16
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 its 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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 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) The Registration Statement, including any Rule 462(b)
Registration Statement, shall have become effective under the 1933 Act no later
than 5:30 P.M., New York City time, on the date hereof, and on the date hereof
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, or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) At Closing Time the Representatives shall have received:
17
(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
Protective Life Insurance have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear of
any perfected security interests and, to such counsel's best knowledge, any
other security interests, claims, liens or encumbrances.
(iii) 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.
18
(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 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 and Protective Life
Insurance 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 Protective Life Insurance 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 Protective Life
Insurance 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 Protective Life Insurance 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 Protective Life Insurance 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 Securities being delivered
or the consummation by the
19
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 date hereof 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 opinion required hereby, (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 Debevoise
& ▇▇▇▇▇▇▇▇ 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 the Representatives consent (which consent shall
not be unreasonably withheld), to the extent specified in such opinion, upon
the opinions (copies
20
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 Underwriters 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 Underwriters),
provided that such counsel shall state that she believes that both she and
the Underwriters are justified in relying upon such certificates.
(2) The signed opinion, dated as of the Closing Time, of Debevoise &
▇▇▇▇▇▇▇▇, special 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) At the time the Registration Statement became
effective, the Registration Statement (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) complied 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 complied 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 1993 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,
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.
21
(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, each of the Guarantees, 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 the Preferred Securities", "Description of the Preferred
Securities Guarantee", "Description of the Subordinated Debt Securities"
and "Effect of Obligations under the Subordinated Debt Securities and the
Preferred Securities Guarantee", insofar as such statements constitute
summaries of certain provisions of the documents and laws referred to
therein, has been reviewed by such counsel and fairly summarizes the
material provisions of such documents and laws.
(vii) This Agreement has been duly authorized, executed and
delivered by each of the Trust and the Company.
(viii) Each of the Guarantees and 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, 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.
22
(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.
Debevoise & ▇▇▇▇▇▇▇▇ shall also have stated that, while they have not themselves
checked the accuracy or completeness of or otherwise verified, and are not
passing upon and assume no responsibility for the accuracy or completeness of,
the statements contained in the Registration Statement or the Prospectus, except
to the limited extent stated in paragraphs (vii) and (viii) above, in the course
of their review and discussion of the contents of the Registration Statement and
the Prospectus with certain officers and employees of the Company and its
independent accountants, but without independent check or verification, no facts
have come to the attention of such counsel that would cause such counsel to
believe that the Registration Statement or the Prospectus, as amended or
supplemented, as of the date hereof 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 such counsel 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, Debevoise & ▇▇▇▇▇▇▇▇ may state that they
express 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 and Delaware.
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 such counsel believes
that you and such counsel 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.
23
(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 (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 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, 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, 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
24
Trust or Declaration or any applicable Delaware law or administrative
regulation.
(xi) None of the execution and delivery by the Trust of, or the
performance by the Trust of its obligations under, this Agreement, the
issuance and sale of the Preferred Securities by the Trust in accordance
with the terms of this 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.
25
(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 "Certain Federal Income Tax Considerations", 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 ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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
Registration Statement, the Prospectus and other related matters as the
Representatives may require. In giving their opinion, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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 date of this Agreement 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) 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
26
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 threatened by
the Commission.
(e) The Representatives shall have received letters from the
Company's independent public accountants (dated the date of this Agreement and
the Closing Time, respectively, and in form and substance reasonably
satisfactory to the Representatives) advising that (i) they are independent
certified public accountants with respect to the Company within the meaning of
the 1933 Act and 1933 Act Regulations; (ii) in their opinion, the consolidated
financial statements and financial statement schedules of the Company audited by
them and incorporated by reference in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements of the
1933 Act, the 1934 Act, the 1933 Act Regulations and the 1934 Act Regulations;
(iii) they have not audited any financial statements of the Company as of any
date or for any period subsequent to December 31, 1996, but they have conducted
an audit for the year ended December 31, 1996, the purpose (and therefore the
scope) of which was to enable them to express their opinion on the consolidated
financial statements as of December 31, 1996, and for the year then ended, but
not on the consolidated financial statements for any interim period within that
year or on the financial position, results of operations or cash flows as of any
date or for any period subsequent to December 31, 1996; (iv) for purposes of
such letters, they have read the 1997 minutes of the meetings of the
Stockholders, the Board of Directors, the Audit Committee and the Executive
Committee of the Company and its subsidiaries as set forth in the minute books
at April __, 1997, officials of the Company having advised them that the minutes
for all such meetings through that date were set forth therein, provided that
with respect to the period from January 1, 1997 through April __, 1997 they have
been advised by officials of the Company that no financial statements as of any
date or for any period subsequent to December 31, 1996 were available; (v) as
mentioned in the foregoing clause (iv), Company officials have advised them that
no consolidated financial statements as of any date or for any period subsequent
to December 31, 1996 are available and, accordingly, the procedures carried out
by them with respect to financial statement items after December 31, 1996 have
been, of necessity, limited, provided that they have made inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters as to whether (A) at April __, 1997, there was any change in the common
stock, any increase in short-term or long-term debt, or any decreases in
consolidated net assets or stockholders' equity (other than the effect on
stockholders' equity of unrealized gains and losses on investments or dividends
in the interim period) as compared with the amounts shown on the December 31,
1996 audited consolidated balance sheet incorporated by reference in the
Registration Statement or (B) for the period from January 1, 1997 to April __,
1997, there were any decreases
27
as compared with the corresponding period in the preceding year, in consolidated
operating revenues or in the total or per-share amounts of income before
extraordinary items, or net of income, and on the basis of these inquiries and
their reading of the minutes as described in the foregoing clause (iv), nothing
came to their attention that caused them to believe that there was any such
change, increase, or decrease, except in all instances for changes, increases,
or decreases that the Registration Statement discloses have occurred or may
occur; (vi) for purposes of such letters, they have also read the items on
specified excerpts from the Registration Statement and documents incorporated by
reference therein and have performed the procedures specified in such letters.
(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 in
one of the four highest rating categories for long term debt ("Investment
Grade") by any nationally recognized statistical rating agency, and the Trust
shall have delivered to the Representatives a letter, dated the Closing Time,
from such nationally recognized statistical rating agency, or other evidence
satisfactory to the Representatives, confirming that the Preferred Securities
have Investment Grade 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 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.
28
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 Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, 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
29
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 7(a) above, counsel to the indemnified parties shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
paragraph 7(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
30
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 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,
31
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 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 (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, or, if Rule 434 is used, the
corresponding location on the Term Sheet, 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.
32
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, 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 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
33
declared by either Federal, Alabama, Delaware or New York State authorities.
This Agreement may also terminate pursuant to the provisions
of Section 5, with the effect stated in such Section.
(b) If this Agreement is 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 (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 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 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, 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.
34
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.: (212)
449-2993), attention of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopier no.: (212)
455-2502), attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; and notices to the Trust and the
Company shall be directed to them at Protective Life Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇), attention
of Secretary, with a copy to Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇), attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Esq.
SECTION 12. PARTIES. This 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 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 any provision herein
contained. This Agreement and all conditions and provisions hereof 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 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. This 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.
35
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:
PLC CAPITAL TRUST I
By:_________________________
Name:
Title: Regular Trustee
36
CONFIRMED AND ACCEPTED, as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By:_____________________________________
Name:
Authorized Signatory
For themselves and as Representatives of the other
Underwriters named in Schedule A hereto.
SCHEDULE A
NUMBER OF
PREFERRED
NAME OF UNDERWRITER SECURITIES
------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
