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PROTECTIVE LIFE CORPORATION
to
THE BANK OF NEW YORK
(as successor to AmSouth Bank)
as Trustee
SUPPLEMENTAL INDENTURE No. 5
Dated as of August 22, 2001
7-1/2% Subordinated Debentures
Due 2031, Series D
$103,093,000
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PROTECTIVE LIFE CORPORATION
SUPPLEMENTAL INDENTURE No. 5
$103,093,000
7-1/2% Subordinated Debentures
Due 2031, Series D
SUPPLEMENTAL INDENTURE No. 5, dated as of August 22, 2001 from
PROTECTIVE LIFE CORPORATION, a Delaware corporation (the "Company"), to THE BANK
OF NEW YORK (as successor to AmSouth Bank), as trustee (the "Trustee").
RECITALS
The Company has heretofore executed and delivered to the
Trustee a Subordinated Indenture, dated as of June 1, 1994 as supplemented and
amended by Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental
Indenture No. 2, dated as of August 1, 1994, Supplemental Indenture No. 3, dated
as of April 29, 1997 and Supplemental Indenture No. 4, dated as of November 20,
1997 (as so supplemented and amended, the "Indenture"), providing for the
issuance from time to time of series of the Company's Securities.
Section 3.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture.
Section 8.1(7) of the Indenture provides for the Company and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
2.1 and 3.1 of the Indenture.
For and in consideration of the premises and the issuance of
the series of Securities provided for herein, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the Holders of the
Securities of such series:
ARTICLE 1
Relation to Indenture; Definitions
Section 1.1. This Supplemental Indenture No. 5 constitutes an
integral part of the Indenture.
Section 1.2. For all purposes of this Supplemental Indenture
No. 5:
(1) Capitalized terms used herein without definition shall
have the meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture No. 5; and
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(3) The terms "herein", "hereof", "hereunder" and other words
of similar import refer to this Supplemental Indenture No. 5.
ARTICLE 2
The Series of Securities
Section 2.1. TITLE OF THE SECURITIES. There shall be a series
of Securities designated the "7-1/2% Subordinated Debentures Due 2031, Series D"
(hereinafter, the "Securities").
Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT; DATE OF
SECURITIES. The aggregate principal amount of the Securities shall be limited to
$103,093,000. Each Security shall be dated the date of its authentication.
Section 2.3. PRINCIPAL PAYMENT DATES. The principal amount of
the Securities Outstanding (together with any accrued and unpaid interest
thereon) shall be payable in a single installment on August 22, 2031.
Section 2.4. INTEREST AND INTEREST RATES. The rate of interest
on each Security shall be 7-1/2% per annum, accruing from August 22, 2001 and,
subject to Section 2.5, interest shall be payable, in arrears, on February 15,
May 15, August 15 and November 15 of each year (each an "Interest Payment
Date"), commencing November 15, 2001. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of twelve 30-day months and
a 360-day year and, for any period that is shorter than a full 90-day quarter,
will be calculated on the basis of the actual number of days elapsed in such
period. In the event that any date on which interest is payable on a Security is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest so payable on any Security which is
punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Security is registered at the close of business
on the Regular Record Date for such Interest Payment Date, which, for purposes
of this Supplemental Indenture No. 5, shall be the Business Day preceding such
Interest Payment Date; provided, that in the event the Securities shall not
continue to remain in book-entry only form, the record dates shall be the
February 1, May 1, August 1 and November 1 prior to the applicable Interest
Payment Date. The interest so payable on any Security which is not punctually
paid or duly provided for on any Interest Payment Date shall forthwith cease to
be payable to the Person in whose name such Security is registered on the
relevant Regular Record Date, and such defaulted interest shall instead be
payable to the Person in whose name such Security is registered on the special
record date or other specified date determined in accordance with the Indenture.
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Section 2.5. EXTENSION OF INTEREST PAYMENT PERIOD.
Notwithstanding anything contained herein or in the Indenture to the contrary,
the Company shall have the right at any time, and from time to time, during the
term of the Securities to defer payments of interest by extending the interest
payment period to the next Interest Payment Date by one or more quarterly
periods not exceeding 20 consecutive quarters (each such period, an "Extension
Period"), but no such Extension Period may extend beyond August 22, 2031. At the
end of any such Extension Period, the Company shall pay all interest then
accrued and unpaid (including any Additional Interest, as hereinafter defined)
together with interest thereon compounded quarterly at the rate specified for
the Securities to the extent permitted by applicable law ("Compound Interest");
PROVIDED, that during any such Extension Period, (a) the Company shall not
declare or pay dividends on, make any distribution with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to any of its
capital stock (other than (i) purchases or acquisitions of shares of the
Company's common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligation pursuant to any contract or security requiring it to purchase
shares of its common stock, (ii) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of its capital stock,
(iii) the purchase of fractional interests in shares of the Company's capital
stock pursuant to an acquisition or the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, and (iv)
redemptions or purchases pursuant to the Company's Rights Agreement, dated
August 7, 1995, between the Company and The Bank of New York (as successor to
AmSouth Bank) as Rights Agent), (b) the Company shall not make any payment of
principal, premium, if any, or interest on or repay, repurchase or redeem any
debt securities issued by the Company that rank PARI PASSU with or junior to the
Securities and (c) the Company shall not make any guarantee payments with
respect to the foregoing (other than pursuant to the Preferred Securities
Guarantee Agreement, dated as of August 22, 2001 of the Company (the
"Guarantee") with respect to the 7-1/2% Trust Originated Preferred Securities
(the "Preferred Securities") issued by PLC Capital Trust III ("PLC Capital"),
the Common Securities Guarantee Agreement, dated as of August 22, 2001 of the
Company (the "Common Guarantee," and together with the Guarantee, the
"Guarantees") with respect to the 7-1/2% Trust Originated Common Securities (the
"Common Securities," and together with the Preferred Securities, the "Trust
Securities") issued by PLC Capital and the Preferred Securities Guarantee
Agreement, dated as of April 29, 1997 of the Company (the "Series B Preferred
Guarantee") with respect to the 8 1/4% Trust Originated Preferred Securities,
Series B of PLC Capital Trust I and the Common Securities Guarantee Agreement,
dated as of April 29, 1997 of the Company (the "Series B Common Guarantee") with
respect to the 8 1/4% Trust Originated Common Securities. Prior to the
termination of any such Extension Period, the Company may further defer payments
of interest by extending the interest payment period; PROVIDED, HOWEVER, that,
such Extension Period, including all such previous and further extensions, may
not exceed 20 consecutive quarters or beyond the Stated Maturity. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Company may commence a new Extension Period, subject to the terms set forth in
this section. No interest shall be due and payable during any Extension Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extension Period. If the Institutional
Trustee (as
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defined in the Amended and Restated Declaration of Trust of PLC Capital,
dated as of August 22, 2001 (the "Declaration of Trust")) shall be the sole
holder of the Securities, the Company shall give the Regular Trustees (as
defined in the Declaration of Trust), the Institutional Trustee (as defined
in the Declaration of Trust) and the Indenture Trustee, notice of its
selection of such Extension Period one Business Day prior to the earlier of
(i) the date distributions on the Preferred Securities are payable or (ii)
the date the Regular Trustees are required to give notice of the record date
or the date such distribution is payable to the New York Stock Exchange (or
other applicable self-regulatory organization) or to holders of the Preferred
Securities, but in any event at least one Business Day before such record
date. If the Institutional Trustee shall not be the sole holder of the
Securities, the Company shall give the holders of the Securities notice of
its selection of such Extension Period at least 10 Business Days prior to the
earlier of (i) the Interest Payment Date or (ii) the date upon which the
Company is required to give notice of the record or payment date of such
interest payment to the New York Stock Exchange (or other applicable
self-regulatory organization) or to holders of the Securities. The quarter in
which any notice is given pursuant to this Section 2.5 shall be counted as
one of the 20 quarters permitted in the maximum Extension Period permitted
hereunder.
Section 2.6. PLACE OF PAYMENT. The Place of Payment where the
Securities issued in certificated form may be presented or surrendered for
payment, where such Securities may be surrendered for registration of transfer
or exchange and where notices and demands to and upon the Company in respect of
such Securities and the Indenture may be served shall be the Corporate Trust
Office of the Trustee; provided, however, that payment of interest may be made
at the option of the Company by checks mailed to the Holders at such addresses
as shall appear in the Register. Notwithstanding the foregoing, so long as the
Holder of any Securities is the Institutional Trustee, the payment of the
principal of and interest (including Compound Interest and Additional Interest,
if any) on such Securities held by the Institutional Trustee will be made at
such place and to such account as may be designated by the Institutional
Trustee.
Section 2.7. REDEMPTION. Subject to the terms and conditions
of Article 10 of the Indenture:
(1) OPTIONAL REDEMPTION. The Company may redeem the Securities
in whole at any time or in part from time to time, in each case on or after
August 22, 2006, but prior to the Stated Maturity, upon not less than 30 nor
more than 60 days' notice, at a redemption price equal to 100% of the principal
amount of the Securities to be redeemed plus any accrued and unpaid interest,
including Additional Interest, if any, to the date fixed for redemption (the
"Redemption Price").
(2) The Company will have the right at any time to dissolve
PLC Capital and cause the Securities to be distributed to the holders of the
Trust Securities in accordance with the Declaration of Trust.
(3) SPECIAL EVENT REDEMPTION.
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(i) If, at any time, a Tax Event or an Investment
Company Event (each as defined below, and each a "Special Event") has occurred
and is continuing, the Company shall have the right, upon not less than 30 nor
more than 60 days notice, to redeem the Securities in whole but not in part, for
cash in the amount of the Redemption Price, within 90 days following the
occurrence of such Special Event, and, following such redemption, Trust
Securities with an aggregate liquidation amount equal to the aggregate principal
amount of the Securities so redeemed shall be redeemed by PLC Capital at the
Redemption Price; PROVIDED, HOWEVER, that if at the time there is available to
the Company or the Trust the opportunity to eliminate, within such 90 day
period, the Tax Event by taking some ministerial action, such as filing a form
or making an election or pursuing some other similar reasonable measure that has
no adverse effect on PLC Capital, the Company or the holders of the Trust
Securities, the Company or PLC Capital will pursue such measure in lieu of a
redemption. If the Company does not elect either to distribute the Securities to
the holders of the Preferred Securities in liquidation of PLC Capital or to
redeem the Securities, the Trust Securities shall remain outstanding and, in the
event a Special Event is continuing, Additional Interest (as defined in Section
2.18) will be payable on the Securities.
(ii) "Tax Event" means the receipt by the Company of
an opinion of a nationally recognized independent tax counsel experienced in
such matters to the effect that, as a result of (A) any amendment to, or change
(including any announced prospective change) in, on or after the day before the
date of issuance of the Preferred Securities under the Declaration of Trust, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (B) any interpretation or
application of, or pronouncement with respect to, such laws or regulations by
any legislative body, court, governmental agency or regulatory authority, which
amendment or change is effective or which interpretation, application or
pronouncement is announced on or after the day before the date of issuance of
the Preferred Securities under the Declaration of Trust, there is more than an
insubstantial increase in the risk that (x) PLC Capital is, or will be within 90
days of the date thereof, subject to U.S. federal income tax with respect to
income received or accrued on the Securities, (y) interest payable by the
Company on the Securities is not, or within 90 days of the date thereof, will
not be, deductible, in whole or in part, for U.S. federal income tax purposes,
or (z) PLC Capital is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
(iii) "Investment Company Event" means that the
Regular Trustees shall have received an opinion of a nationally recognized
independent counsel experienced in practice under the Investment Company Act (an
"Investment Company Event Opinion") that, as a result of the occurrence of a
change in law or regulation or a written change in interpretation or application
of law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is a more than an
insubstantial risk that the Trust is or will be considered an Investment Company
which is required to be registered under the Investment Company Act, which
Change in 1940 Act Law becomes effective on or after the date of the Prospectus
Supplement dated August 17, 2001 relating to the offer and sale of the Preferred
Securities (the "Prospectus Supplement").
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(4) The Securities are not entitled to the benefit of any
sinking fund.
(5) If Securities are distributed to the holders of the
Preferred Securities, (i) the Company will use its best efforts to cause the
Securities to be listed on the New York Stock Exchange or on such other exchange
as the Preferred Securities are then listed, and (ii) the Indenture, this
Supplemental Indenture No. 5 and the terms of the Securities may, thereafter, be
modified or amended with the consent of not less than 66-2/3% in principal
amount of the Securities at any time outstanding, PROVIDED, HOWEVER, that no
such modification or amendment may, without the consent of the Holder of each
Security affected thereby, (A) extend the stated maturity of the principal of
any Security, or reduce the principal amount thereof or reduce the rate or
extend the time of payment of interest thereon (other than as provided in
Section 2.5 or this Supplemental Indenture No. 5), or reduce any amount payable
on redemption thereof or change the currency in which the principal thereof or
interest thereon is payable or impair the right to institute suit for the
enforcement of any payment on any Security when due, or (B) reduce the aforesaid
principal amount of Securities, the consent of the Holders of which is required
for any such modification.
Section 2.8. PREFERRED SECURITY HOLDERS' RIGHTS. If an Event
of Default constituting the failure to pay interest or principal on the
Securities on the date such interest or principal is otherwise payable has
occurred and is continuing, then a holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such holder directly of the
principal of or interest on the Securities having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder on
or after the respective due date specified in the Securities. The holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Securities under this Supplemental Indenture No.
5 or under the Indenture unless the Institutional Trustee fails to do so.
Section 2.9. ADDITIONAL COVENANTS. The Company agrees that if
(i) there shall have occurred any event that would constitute an Event of
Default (as defined herein) or (ii) the Company shall be in default with respect
to its payment of any obligations under the Guarantee or Common Guarantee, or
(iii) the Company shall have given notice of its election to defer payments of
interest on such Securities by extending the interest payment period as provided
in this Supplemental Indenture No. 5 and such period, or any extension thereof,
shall be continuing, then (a) the Company shall not declare or pay any dividend
on, make any distribution with respect to, or redeem, purchase, acquire or make
a liquidation payment with respect to any of its capital stock (other than (i)
purchases or acquisitions of shares of the Company's common stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plans or the satisfaction by the Company of its obligation pursuant to
any contract or security requiring it to purchase shares of its common stock,
(ii) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of its capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to an acquisition or
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (iv)
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redemptions or purchases pursuant to the Company's Rights Agreement, dated
August 7, 1995, between the Company and The Bank of New York (as successor to
AmSouth Bank) as Rights Agent), (b) the Company shall not make any payment of
principal, premium, if any, or interest on or repay, repurchase or redeem any
debt securities issued by the Company that rank PARI PASSU with or junior to
the Securities, and (c) the Company shall not make any guarantee payments
with respect to the foregoing (other than pursuant to either of the
Guarantees or the Series A Guarantee).
The Company agrees (i) to directly or indirectly maintain 100%
ownership of the Common Securities; PROVIDED, HOWEVER, that any permitted
successor of the Company under the Indenture may succeed to the Company's
ownership of such Common Securities, (ii) not to voluntarily terminate, wind-up
or liquidate PLC Capital, except (a) in connection with a distribution of
Securities to the holders of the Preferred Securities in liquidation of PLC
Capital, or (b) in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration of Trust and (iii) to use its
reasonable efforts, consistent with the terms and provisions of the Declaration
of Trust, to cause PLC Capital to remain a grantor trust and not to be
classified as an association taxable as a corporation for United States federal
income tax purposes.
Section 2.10. DENOMINATION. The Securities shall be issuable
in denominations of $1,000 and integral multiples thereof.
Section 2.11. CURRENCY. Principal and interest on the
Securities shall be payable in Dollars.
Section 2.12. REGISTERED SECURITIES; FORM. Except as provided
in Section 2.13, the Securities shall be issued as Registered Securities,
without coupons and shall be registered in the name of Wilmington Trust Company,
as Institutional Trustee, and its permitted registered assigns. The Securities
shall be substantially in the form attached as Exhibit A hereto.
Section 2.13. GLOBAL SECURITIES UPON LIQUIDATION OF TRUST.
(1) If, in accordance with the Declaration of Trust, PLC
Capital is to be dissolved and the Securities held by the Institutional Trustee
are to be distributed to the holders of the Trust Securities:
(a) the Securities in certificated form shall be
presented to the Trustee by the Institutional Trustee in exchange for a global
Security in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Securities (a "Global Security") to be registered in
the name of the Depository (as defined in the Declaration of Trust), or its
nominee, and delivered by the Trustee to the Depository for crediting to the
accounts of its participants pursuant to the instructions of the Regular
Trustees (as defined in the Declaration of Trust). The Company upon any such
presentation shall execute a Global Security in such aggregate principal amount
and deliver the same to the Trustee for authentication and delivery in
accordance with
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the Indenture and this Supplemental Indenture No. 5. Payments on Securities
issued as Global Securities will be made to the Depository; and
(b) if any Preferred Securities are held in non
book-entry certificated form, the Securities in certificated form may be
presented to the Trustee by the Institutional Trustee and any Preferred Security
Certificate (as defined in the Declaration of Trust) which represents Preferred
Securities other than Preferred Securities held by the Clearing Agency (as
defined in the Declaration of Trust) or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests in Securities
presented to the Trustee by the Institutional Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are presented to
the Registrar for transfer or reissuance at which time such Preferred Security
Certificates will be canceled and a Security, registered in the name of the
holder of the Preferred Security Certificate or the transferee of the holder of
such Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security Certificate canceled, will be executed by the Company and delivered to
the Trustee for authentication and delivery in accordance with the Indenture and
this Supplemental Indenture No. 5. On issue of such Securities, Securities with
an equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Trustee will be deemed to have been canceled.
(2) Unless and until it is exchanged for the Securities in
registered form, a Global Security may be transferred, in whole but not in part,
only to another nominee of the Depository, or to a successor Depository selected
or approved by the Company or to a nominee of such successor Depository.
(3) If at any time the Depository notifies the Company that it
is unwilling or unable to continue as Depository or if at any time the
Depository for such series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, and a successor Depository for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the Company will
execute, and, subject to Article III of the Indenture, the Trustee, upon written
notice from the Company, will authenticate and deliver the Securities in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security. In addition, the Company may at
any time determine that the Securities shall no longer be represented by a
Global Security. In such event the Company will execute, and subject to Section
3.3 of the Indenture, the Trustee, upon receipt of an Officer's Certificate
evidencing such determination by the Company, will authenticate and deliver the
Securities in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. Upon the
exchange of the Global Security for such Securities in definitive registered
form without coupons, in authorized denominations, the Global Security shall be
canceled by the Trustee. Such Securities in definitive registered form issued in
exchange for the Global Security shall be registered in such names and in such
authorized denominations as the
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Depository, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depository for delivery to the Persons in whose names such
Securities are so registered.
Section 2.14. DEFEASANCE AND COVENANT DEFEASANCE. The
provisions of Sections 4.4 and 4.5 of the Indenture shall apply to the
Securities.
Section 2.15. REGISTRAR AND PAYING AGENT. The Trustee shall
initially serve as Registrar and Paying Agent.
Section 2.16. ADDITIONAL PROVISIONS REGARDING AMENDMENTS. So
long as the Holder of the Securities is PLC Capital, the terms of the Securities
may be amended by mutual consent of the Company and PLC Capital in the manner
they shall agree; PROVIDED, HOWEVER, that, so long as any of the Preferred
Securities remain outstanding, no such amendment shall be made that adversely
affects the holders of the Preferred Securities, no termination of the
Securities shall occur, and no Event of Default or compliance with any covenant
under the Securities may be waived by PLC Capital, without the prior approval of
the holders of at least 66-2/3% in liquidation preference of all Preferred
Securities then outstanding, in writing or at a duly constituted meeting of such
holders.
Section 2.17. ADDITIONAL PROVISIONS REGARDING ASSIGNMENT. The
Company shall have the right at all times to assign any of its rights or
obligations under the Securities to a direct or indirect wholly-owned subsidiary
of the Company; PROVIDED, HOWEVER, that, in the event of any such assignment,
the Company shall remain jointly and severally liable for all such obligations.
So long as PLC Capital is the Holder of the Securities, PLC Capital may not
assign any of its rights under the Securities, other than in connection with a
merger or consolidation or sale of assets or exchange permitted under the terms
of the Preferred Securities. Subject to the foregoing, the Securities shall be
binding upon and inure to the benefit of the Company and PLC Capital and their
respective permitted successors and assigns. Any assignment by the Company or
PLC Capital in contravention of such provisions will be null and void.
Section 2.18. MISCELLANEOUS EXPENSES.
(1) In connection with the offering, sale and issuance of the
Securities to the Institutional Trustee and in connection with the sale of the
Trust Securities by PLC Capital, the Company, in its capacity as borrower with
respect to the Securities, shall pay (a) all costs and expenses relating to the
offering, sale and issuance of the Trust Securities and the Securities,
including commissions to the underwriters payable pursuant to the Purchase
Agreement and compensation of the Trustee under the Indenture, (b) all costs and
expenses of PLC Capital (including, but not limited to, costs and expenses
relating to the organization of PLC Capital, the offering sale and issuance of
the Trust Securities (including commissions to the underwriters in connection
therewith), the fees and expenses of the Institutional Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of PLC Capital,
including, without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services,
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expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of
PLC Capital's assets), and (c) the enforcement by the Institutional Trustee
(as defined in the Declaration of Trust) of the rights of the holders of the
Preferred Securities. The Company fully and unconditionally guarantees the
payment of such expenses.
(2) If at any time PLC Capital shall be required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other domestic
taxing authority, then, in any such case, the Company agrees to pay, as
additional interest ("Additional Interest") such additional amounts as shall be
required so that the net amounts received and retained by PLC Capital with
respect to the Securities after paying any such taxes, duties, assessments or
other governmental charges, as well as all liabilities, costs and expenses of
PLC Capital with respect to any such items, will be not less than the amounts
PLC Capital would have received had no such taxes, duties, assessments or other
governmental charges been imposed and no such liabilities, costs and expenses
with respect thereto been incurred.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. The Indenture, as supplemented and amended by
this Supplemental Indenture No. 5, is in all respects hereby adopted, ratified
and confirmed.
Section 3.2. This Supplemental Indenture No. 5 may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 3.3. THIS SUPPLEMENTAL INDENTURE NO. 5 AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
NEW YORK AND SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 5 to be duly executed, as of the day and year first
written above.
PROTECTIVE LIFE CORPORATION
By:
-----------------------------------
Name: Richard J. Bielen
Title: Senior Vice President,
Investments
By:
-----------------------------------
Name: Jerry W. DeFoor
Title: Vice President and Controller
and Chief Accounting Officer
[Seal]
Attest:
----------------------------------
Name: Deborah J. Long
Title: Senior Vice President,
Secretary and General Counsel
THE BANK OF NEW YORK, AS TRUSTEE
By: The Bank of New York Trust Company of
Florida, N.A., as Agent
By:
------------------------------
Authorized Signatory
[Seal]
Attest:
------------------------------
Name:
Title:
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[FORM OF FACE OF SERIES D SUBORDINATED DEBENTURE]
THIS SERIES D SUBORDINATED DEBENTURE IS REGISTERED IN THE NAME OF WILMINGTON
TRUST COMPANY, AS INSTITUTIONAL TRUSTEE, AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF OTHER THAN AS PERMITTED IN THE SUPPLEMENTAL INDENTURE NO.
5 DATED AS OF AUGUST 22, 2001, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY INSERT - This Subordinated
Debenture is Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depository or a nominee of a
Depository. This Subordinated Debenture is exchangeable for Subordinated
Debentures registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and no
transfer of this Subordinated Debenture (other than a transfer of this
Subordinated Debenture as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Subordinated Debenture is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
Subordinated Debenture issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of the Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
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PROTECTIVE LIFE CORPORATION
CUSIP #743674 AP 8
7-1/2% Subordinated Debentures
Due August 22, 2031, Series D
No. 1 $103,093,000
PROTECTIVE LIFE CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture (as defined on the
reverse hereof)), for value received, hereby promises to pay to
______________________, the principal sum of $______________ Dollars on August
22, 2031 (such date is hereinafter referred to as the "Stated Maturity") and to
pay interest thereon from August 22, 2001. Interest shall be payable on this
Subordinated Debenture, in arrears, on February 15, May 15, August 15 and
November 15 of each year (each an "Interest Payment Date") commencing November
15, 2001, at the rate of 7-1/2% per annum, until the principal hereof is paid or
made available for payment; PROVIDED that any such installment of interest,
which is overdue shall bear interest at the rate of 7-1/2% per annum (to the
extent that the payment of such interest shall be legally enforceable) from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand; PROVIDED FURTHER that,
notwithstanding anything contained in the Indenture and Supplemental Indenture
No. 5 (as defined on the reverse hereof) to the contrary, the Company shall have
the right at any time, and from time to time, during the term of this
Subordinated Debenture to defer payments of interest by extending the interest
payment period to the next Interest Payment Date by one or more quarterly
periods not exceeding 20 consecutive quarters (each such period, an "Extension
Period"), but no such Extension Period may extend beyond August 22, 2031, or
such other date to which the Stated Maturity may have been shortened or extended
as described below. At the end of any such Extension Period, the Company shall
pay all interest then accrued and unpaid (including any Additional Interest, as
defined in Supplement Indenture No. 5), together with interest thereon
compounded quarterly at the rate specified for this Subordinated Debenture to
the extent permitted by applicable law; PROVIDED, that during any such Extension
Period, (a) the Company shall not declare or pay dividends on, make any
distribution with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to any of its capital stock (other than (i) purchases or
acquisitions of shares of the Company's common stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plans
or the satisfaction by the Company of its obligation pursuant to any contract or
security requiring it to purchase shares of its common stock, (ii) as a result
of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of its capital stock, (iii) the purchase of fractional interests
in shares of the Company's capital stock pursuant to an acquisition or the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (iv) redemptions or purchases pursuant to the
Company's Rights Agreement, dated August 7, 1995, between the Company and The
Bank of New York (as successor to AmSouth Bank) as Rights Agent), (b) the
Company shall not
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make any payment of principal, premium, if any, or interest on or repay,
repurchase or redeem any debt securities issued by the Company that rank PARI
PASSU with or junior to the Securities (as defined in Supplemental Indenture
No. 5) and (c) the Company shall not make any guarantee payments with respect
to the foregoing (other than pursuant to the Preferred Securities Guarantee
Agreement, dated as of August 22, 2001 of the Company (the "Guarantee") with
respect to the 7-1/2% Trust Originated Preferred Securities (the "Preferred
Securities") issued by PLC Capital Trust III ("PLC Capital"), the Common
Securities Guarantee Agreement, dated as of August 22, 2001 of the Company
(the "Common Guarantee," and together with the Guarantee, the "Guarantees")
with respect to the 7-1/2% Trust Originated Common Securities (the "Common
Securities," and together with the Preferred Securities, the "Trust
Securities") issued by PLC Capital and the Preferred Securities Guarantee
Agreement, dated as of April 29, 1997 of the Company (the "Series B Preferred
Guarantee") with respect to the 8 1/4% Trust Originated Preferred Securities,
Series B of PLC Capital Trust I and the Common Securities Guarantee
Agreement, dated as of April 29, 1997 of the Company (the Series B Common
Guarantee with respect to the 8 1/4% Trust Originated Common Securities).
Prior to the termination of any such Extension Period, the Company may
further defer payments of interest by extending the interest payment period;
PROVIDED, HOWEVER, that, such Extension Period, including all such previous
and further extensions, may not exceed 20 consecutive quarters or beyond the
Stated Maturity. Upon the termination of any Extension Period and the payment
of all amounts then due, the Company may commence a new Extension Period,
subject to the terms set forth below. No interest shall be due and payable
during any Extension Period, except at the end thereof, but the Company may
prepay at any time all or any portion of the interest accrued during any
Extension Period. If the Institutional Trustee (as defined in the Amended and
Restated Declaration of Trust of PLC Capital (the "Declaration of Trust")
shall be the sole holder of the Securities, the Company shall give the
Regular Trustees (as defined in the Declaration of Trust) and the
Institutional Trustee (as defined in the Declaration of Trust), notice of its
selection of such Extension Period one Business Day prior to the earlier of
(i) the date distributions on the Preferred Securities are payable or (ii)
the date the Regular Trustees are required to give notice of the record date
or the date such distribution is payable to the New York Stock Exchange (or
other applicable self-regulatory organization) or to holders of the Preferred
Securities, but in any event at least one Business Day before such record
date. If the Institutional Trustee shall not be the sole holder of the
Securities, the Company shall give the holders of the Securities notice of
its selection of such Extension Period at least 10 Business Days prior to the
earlier of (i) the Interest Payment Date or (ii) the date upon which the
Company is required to give notice of the record or payment date of such
interest payment to the New York Stock Exchange (or other applicable
self-regulatory organization) or to holders of the Securities. The quarter in
which any notice is given in accordance with the foregoing provisions shall
be counted as one of the 20 quarters permitted in the maximum Extension
Period permitted hereunder.
<Page>
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period that is shorter than a full 90-day quarter, will be calculated on the
basis of the actual number of days elapsed in such period. In the event that any
date on which interest is payable on this Security is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest so payable on any Interest Payment Date which is
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture referred to on the reverse hereof, be paid to the
Person in whose name this Subordinated Debenture is registered at the close of
business on the Regular Record Date for such Interest Payment Date, which shall
be the Business Day next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Person in whose name this Security is registered on the relevant Regular
Record Date, and such defaulted interest shall instead be payable to the person
in whose name this Subordinated Debenture is registered on the special record
date for such defaulted interest or other specified date determined in
accordance with the Indenture and the Supplemental Indenture No. 5 referred to
on the reverse hereof.
Payment of the principal of and any such interest on this Subordinated
Debenture will be made at the Corporate Trust Office of the Trustee, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, PROVIDED, HOWEVER, that at
the option of the Company payment of interest may be paid (i) by check mailed to
the address of the person entitled thereto as such address shall appear in the
Register of Holders of the Subordinated Debentures or (ii) by wire transfer to
an account maintained by the Person entitled thereto as specified in the
Register of Holders of the Securities.
Reference is hereby made to the further provisions of this Subordinated
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Subordinated Debenture shall not be entitled to any benefit under the Indenture
and Supplemental Indenture No. 5 referred to on the reverse hereof or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
PROTECTIVE LIFE CORPORATION
By:
------------------------------
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Name:
Title:
By:
------------------------------
Name:
Title:
[CORPORATE SEAL]
<Page>
This is one of the Securities of the series described in the
within-mentioned Indenture.
THE BANK OF NEW YORK, AS TRUSTEE
By: The Bank of New York Trust Company of
Florida, N.A., as Agent
By:
------------------------------
Authorized Signatory
<Page>
[FORM OF REVERSE OF SERIES D SUBORDINATED DEBENTURE]
This Subordinated Debenture is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under a Subordinated Indenture, dated as of June 1,
1994 (herein, together with all indentures supplemental thereto, including
Supplemental Indenture No. 1, dated as of June 9, 1994, Supplemental Indenture
No. 2, dated August 1, 1994, Supplemental Indenture No. 3, dated April 29, 1997,
Supplemental Indenture No. 4, dated November 20, 1997 and Supplemental Indenture
No. 5, dated August 22, 2001 called the "Indenture"), from the Company to The
Bank of New York (as successor to AmSouth Bank) (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $103,093,000 and is issued pursuant to
Supplemental Indenture No. 5, dated as of August 22, 2001 from the Company to
the Trustee, relating to the Securities of this series (herein called
"Supplemental Indenture No. 5").
The indebtedness evidenced by this Security is to the extent provided
in the Indenture, subordinate and junior in right of payment to all Senior
Indebtedness, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
The Securities of this series are subject to redemption at any time in
whole or from time to time in part, on or after August 22, 2006, but prior to
their stated maturity, upon not less than 30 nor more than 60 days' notice, at a
redemption price equal to 100% of the principal amount of the Securities to be
redeemed plus any accrued and unpaid interest, including Additional Interest (as
defined in Supplemental Indenture No. 5), if any, to the date fixed for
redemption (the "Redemption Price").
The Company will have the right at any time to dissolve PLC
Capital and cause the Securities to be distributed to the holders of the Trust
Securities in accordance with the Declaration of Trust.
If, at any time, a Tax Event or an Investment Company Event
(each as defined below, and each a "Special Event") has occurred and is
continuing, the Company shall have the right, upon not less than 30 nor more
than 60 days notice, to redeem the Securities in whole but
<Page>
not in part, for cash in the amount of the Redemption Price, within 90 days
following the occurrence of such Special Event, and, following such
redemption, Trust Securities with an aggregate liquidation amount equal to
the aggregate principal amount of the Securities so redeemed shall be
redeemed by PLC Capital at the Redemption Price; PROVIDED, HOWEVER, that if
at the time there is available to the Company or the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some
ministerial action, such as filing a form or making an election or pursuing
some other similar reasonable measure that has no adverse effect on PLC
Capital, the Company or the holders of the Trust Securities, the Company or
PLC Capital will pursue such measure in lieu of a redemption. If the Company
does not elect either to distribute the Securities to the holders of the
Preferred Securities in liquidation of PLC Capital or to redeem the
Securities, the Trust Securities shall remain outstanding and, in the event a
Special Event is continuing, Additional Interest (as defined in Section 2.18
of Supplemental Indenture No. 5) will be payable on the Securities.
"Tax Event" means the receipt by the Company of an opinion of
a nationally recognized independent tax counsel experienced in such matters to
the effect that, as a result of (A) any amendment to, or change (including any
announced prospective change) in, on or after the day before the date of
issuance of the Preferred Securities under the Declaration of Trust, the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (B) any interpretation or
application of, or pronouncement with respect to, such laws or regulations by
any legislative body, court, governmental agency or regulatory authority, which
amendment or change is effective or which interpretation, application or
pronouncement is announced on or after the day before the date of issuance of
the Preferred Securities under the Declaration of Trust, there is more than an
insubstantial increase in the risk that (x) PLC Capital is, or will be within 90
days of the date thereof, subject to U.S. federal income tax with respect to
income received or accrued on the Securities, (y) interest payable by the
Company on the Securities is not, or within 90 days of the date thereof, will
not be, deductible, in whole or in part, for U.S. federal income tax purposes,
or (z) PLC Capital is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of a nationally recognized independent counsel
experienced in practice under the Investment Company Act (an "Investment Company
Event Opinion") that, as a result of the occurrence of a change in law or
regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), there is a more than an insubstantial
risk that the Trust is or will be considered an Investment Company which is
required to be registered under the Investment Company Act, which Change in 1940
Act Law becomes effective on or after the date of the Prospectus Supplement (as
defined in Supplemental Indenture No. 5).
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
<Page>
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of the
indebtedness of this Security or of certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in aggregate principal amount of
the Securities at the time outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of the Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture or to Supplemental Indenture No. 5
and no provision of this Security or of the Indenture or of Supplemental
Indenture No. 5 shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and interest on, this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations as
therein set forth, the transfer of this Security is registrable in the Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company, the Trustee and the Registrar
duly executed by the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
<Page>
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name this Security is registered as the owner hereof for all
purposes, whether or not the Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Company and the Holder of this Security agree (i) that for United
States federal, state and local tax purposes it is intended that this Security
constitute indebtedness and (ii) to file all United States federal, state and
local tax returns and reports on such basis (unless the Company or such Holder,
as the case may be, shall have received an opinion of independent nationally
recognized tax counsel to the effect that as a result of a change in law after
the date of the issuance of this Security the Company or such Holder, as the
case may be, is prohibited from filing on such basis).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.