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Form 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
UNION PLANTERS CORPORATION
(Exact name of registrant as specified in its charter)
TENNESSEE 62-0859007
(State of incorporation or organization) (I.R.S. Employer Identification No.)
7130 GOODLETT FARMS PARKWAY, MEMPHIS, TENNESSEE 38018
(Address of principal executive offices ) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be registered each class is to be registered
Union Planters Preferred
SHARE PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. |X|
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. |_|
Securities Act registration statement file number to which this form
relates: N/A
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
Title of each class
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
PREFERRED SHARE PURCHASE RIGHTS
On December 17, 1998, the Board of Directors of the Company declared a
distribution of one Right for each outstanding share of common stock, par value
$5.00 per share (the "Company Common Stock" or "Common Stock"), to shareholders
of record at the close of business on January 19, 1999 and for each share of
Company Common Stock issued (including shares distributed from Treasury)
thereafter and prior to the earlier of the Redemption Date and the Distribution
Date (in both cases, as hereinafter defined) subject to the execution of the
Rights Agreement (as hereinafter defined) and to certain other matters. Each
Right entitles the registered holder, subject to the terms of the Rights
Agreement, to purchase from the Company one one-ten-thousandth of a share (a
"Unit") of Series F Preferred Stock, no par value (the "Preferred Stock"), at a
Purchase Price of $180.00 per Unit, subject to adjustment. The Purchase Price is
payable in cash or by certified or bank check or bank draft payable to the order
of the Company. The description and terms of the Rights are set forth in a
Rights Agreement (the "Rights Agreement") between the Company and Union Planters
National Bank, as Rights Agent, dated January 19, 1999.
The Rights Plan shall be effective as of the close of business on
January 19, 1999 for all outstanding shares of Common Stock on the record date
for the distribution of Rights and for all shares of Common Stock issued after
such date and, subject to the next sentence, prior to the earliest of the
Distribution Date (as defined), the redemption of the Rights or the Expiration
Date (as defined). Rights may be issued with respect to shares of Common Stock
issued after the Distribution Date in certain circumstances (such as the
issuance of Common Stock pursuant to employee stock options and convertible
securities).
Prior to the Distribution Date, the Rights will be represented by the
certificates for shares of Common Stock. Separate Right Certificates will be
distributed to shareholders as soon as practicable after the Distribution Date.
Prior to the Distribution Date, the Rights shall be transferable only with the
related shares of Common Stock and shall automatically be transferred with such
shares. After the Distribution Date, the Rights shall be separately transferable
and the Company will provide Right Certificates to all holders of Common Stock.
Until a Right is exercised, the holder thereof, as such, will have no rights as
a shareholder of the Company, including, without limitation, the right to vote
or to receive dividends. The Rights will expire on the tenth anniversary of the
effective date of the Rights Agreement (the "Expiration Date") unless earlier
redeemed or canceled by the Company as provided below.
Initially, the Rights will not be exercisable. The Rights will become
exercisable upon the earlier of (a) the tenth business day (or such later date
as may be determined by the Board) after such time as the Company learns that a
person or group (including any affiliate or associate of such person or group)
has acquired, or obtained the right to acquire, beneficial ownership of 15% or
more of the outstanding Common Stock (such person or group being called an
"Acquiring Person") unless provisions intended to prevent accidental triggering
of the Rights apply, and (b) such date, if any, as may be designated by the
Board of Directors of the Company following the commencement of, or first public
disclosure of an intention to commence, a tender or exchange offer for
outstanding
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Common Stock which could result in such person or group becoming the
beneficial owner of 15% or more of the outstanding Common Stock (the
earlier of such dates being called the "Distribution Date"). Each Right
shall be exercisable for 1/10,000 of a share of the Series F Preferred Stock
(as described below), subject to adjustment.
The terms of the Preferred Stock have been designed so that each
1/10,000 of a share of Preferred Stock is entitled to participate in dividends
and other distributions, and to vote, on an equivalent basis with one whole
share of the presently constituted Common Stock of the Company. In addition, the
Preferred Stock has certain minimum dividend and liquidation rights. The amount
of Preferred Stock issuable upon exercise of the Rights is subject to adjustment
by the Board of Directors of the Company in the event of any change in the
Common Stock or Preferred Stock, whether by reason of share dividends, share
splits, recapitalizations, mergers, consolidations, combinations or exchanges of
securities, split-ups, split-offs, spin-offs, liquidations, other similar
changes in capitalization, any distribution or issuance of assets, evidences of
indebtedness or subscription rights, options or warrants to holders of Common
Stock or Preferred Stock or otherwise.
Subject to an election by the Board of Directors to exchange the Rights
as described below, at such time as there is an Acquiring Person, proper
provision shall be made so that the holder of each Right will thereafter have
the right to receive, upon exercise thereof, for the Purchase Price, that number
of ten-thousandths of a share of Preferred Stock equal to the number of shares
of Common Stock which at the time of such transactions would have a market value
of twice the (the "flip-in" provision). Any Rights that are or
were beneficially owned by an Acquiring Person on or after the Distribution Date
shall become null and void.
In the event the Company is acquired in a merger or other business
combination by an Acquiring Person that is a publicly traded corporation or 50%
or more of the Company's assets or assets representing 50% or more of the
Company's earning power are sold, leased, exchanged or otherwise transferred (in
one or more transactions) to an Acquiring Person that is a publicly traded
corporation, each Right will entitle its holder to purchase, for the Purchase
Price, that number of common shares of such corporation which at the time of the
transaction would have a market value of twice the Purchase Price (the
"flip-over" provision). In the event the Company is acquired in a merger or
other business combination by an Acquiring Person that is not a publicly traded
entity or 50% or more of the Company's assets or assets representing 50% or more
of the earning power of the Company are sold, leased, exchanged or otherwise
transferred (in one or more transactions) to an Acquiring Person that is not a
publicly traded entity, each Right will entitle its holder to purchase, for the
Purchase Price, at such holder's option,
(a) that number of shares of the surviving corporation in the
transaction with such entity (or, at such holder's option, of the
surviving corporation in such acquisition, which could be the Company)
which at the time of the transaction would have an aggregate book
value of twice the Purchase Price or
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(b) that number of shares of such entity which at the time of
the transaction would have a book value of twice the Purchase Price or
(c) if such entity has affiliates which have publicly
traded common shares, that number of common shares of the affiliate
with the greatest aggregate market value on the transaction date, which
at the time of the transaction would have a market value of twice the
Purchase Price.
Any Rights that are or were beneficially owned by an Acquiring Person
on or after the Distribution Date shall become null and void. The "flip-over"
provision only applies to a merger or similar business combination with an
Acquiring Person, and it does not apply to a merger or business combination with
any party which has not triggered the "flip-in" provision.
The Rights are redeemable by the Board of Directors at a redemption
price of $.01 per Right (the "Redemption Price") any time prior to the earlier
of (a) the tenth business day (or such later date as may be determined by the
Board) after such time as there becomes an Acquiring Person and (b) the
Expiration Date. Immediately upon the action of the board electing to redeem the
Rights, and without any further action and without any notice, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
After there is an Acquiring Person, the Board of Directors may elect to
exchange each Right (other than Rights owned by an Acquiring Person) for
consideration per Right consisting of one-half of the securities that would be
issuable at such time upon the exercise of one Right pursuant to the terms of
the Rights Agreement (or equivalent value in cash, shares of Common Stock, or
other securities).
At any time prior to the Distribution Date, the Company may, without
the approval of any holder of the Rights, supplement or amend any provision of
the Rights Agreement (including the date on which the Distribution Date shall
occur and the definition of an "Acquiring Person"), except that no supplement or
amendment shall be made which reduces the Redemption Price of the Rights or
provides for an earlier date of expiration of the Rights.
As of January 19, 1999, 142,047,817 shares of Company Common Stock were
issued and outstanding. Each outstanding share of Company Common Stock on
January 19, 1999 will receive one Right. As long as the Rights are attached to
the Company Common Stock, the Company will issue one Right for each share of
Company Common Stock issued between the Record Date and the Distribution Date.
As of January 19, 1999, no shares of Preferred Stock were issued and
outstanding. A total of 300,000 shares of Preferred Stock has been reserved for
issuance upon exercise of the Rights, subject to adjustment.
The Rights may have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire the
Company on terms not approved by a majority of the Directors unless the offer is
conditioned on a substantial number of Rights being acquired.
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However, the Rights should not interfere with any merger or other business
combination approved by a majority of the Directors, or in certain
circumstances, at the request of a majority of the then outstanding shares of
Company Common Stock voting at a specially called stockholders meeting, since
the Rights may be redeemed by the Company at $.01 per Right at any time on or
prior to the tenth business day following the date on which any Person becomes
an Acquiring Person (subject to extension by a majority of the Directors). Thus,
the Rights are intended to encourage persons who may seek to acquire control of
the Company to initiate such an acquisition through negotiations with the Board
of Directors. However, the effect of the Rights may be to discourage a third
party from making a partial tender offer or otherwise attempting to obtain a
substantial position in the equity securities of, or seeking to obtain control
of, the Company. To the extent any potential acquirers are deterred by the
Rights, the Rights may have the effect of preserving incumbent management in
office.
The form of Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit B the form of
Rights Certificate, is attached hereto as Exhibit 2 and is incorporated herein
by reference. The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to such Exhibit.
ITEM 2. EXHIBITS.
The following exhibits are filed as a part of this
registration statement:
1. Form of Rights Certificate (attached as Exhibit B to Rights
Agreement)
2. Rights Agreement, dated January 19, 1999, between Union
Planters Corporation and Union Planters National Bank
3. Amended and Restated Charter of Union Planters Corporation
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
UNION PLANTERS CORPORATION
Date: January 22, 1999
By /S/ E. JAMES HOUSE, JR.
E. James House, Jr.
Secretary
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<TABLE>
<CAPTION>
Exhibit Index
<S> <C> <C> <C>
Exhibit No. Description
- ------------------------------------------------------------------------------------------------------------------------
Exhibit 1 Form of Rights Certificate (attached as Exhibit B to Rights Agreement)
Exhibit 2 Rights Agreement, dated January 19, 1999, between Union Planters
Corporation and Union Planters National Bank.
Exhibit 3 Amended and Restated Charter of Union Planters Corporation
</TABLE>
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EXHIBIT 2
RIGHTS AGREEMENT dated as of January 19, 1999, between
UNION PLANTERS CORPORATION, a Tennessee corporation (the
"Company"), and UNION PLANTERS
NATIONAL BANK, a Tennessee banking corporation as Rights Agent
(the "Rights Agent").
The Board of Directors of the Company has authorized and declared a
dividend of one Right (as hereinafter defined) for each share of Common Stock,
no par value per share, of the Company (the "Common Stock") outstanding at the
Close of Business (as hereinafter defined) on January 19, 1999 (the "Record
Date"), and has authorized the issuance of one Right (as such number may
hereafter be adjusted pursuant to the provisions of this Rights Agreement) with
respect to each share of Common Stock that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption Date or
the Expiration Date (as such terms are hereinafter defined); PROVIDED, HOWEVER,
that Rights may be issued with respect to shares of Common Stock that shall
become outstanding after the Distribution Date and prior to the earlier of the
Redemption Date or the Expiration Date in accordance with the provisions of
Section 23. Each Right shall initially represent the right to purchase
one-ten-thousandth (1/10,000) of a share of Series F Preferred Stock, without
par value, of the Company (the "Preferred Shares"), having the powers, rights
and preferences set forth in the Articles of Amendment attached as EXHIBIT A.
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this Rights
Agreement, the following terms have the meanings indicated:
"ACQUIRING PERSON" shall mean any Person who or which, alone
or together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the Common Shares then outstanding but shall
not include (a) the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any of its Subsidiaries, or any Person holding Common
Shares for or pursuant to the terms of any such employee benefit plan, or (b)
any such Person who has become and is such a Beneficial Owner solely because (i)
of a change in the aggregate number of Common Shares outstanding since the last
date on which such Person acquired Beneficial Ownership of any Common Shares or
(ii) it acquired such Beneficial Ownership in the good faith belief that such
acquisition would not (A) cause such Beneficial Ownership to equal or exceed 15%
of the Common Shares then outstanding and such Person relied in good faith in
computing the percentage of its Beneficial Ownership on publicly filed reports
or documents of the Company which are inaccurate or out-of-date or (B) otherwise
cause a Distribution Date or the adjustment provided for in Section 11(a) to
occur. Notwithstanding clause (b)(ii) of the prior sentence, if any Person that
is not an Acquiring Person due to such clause (b)(ii) does not reduce its
percentage of Beneficial Ownership of Common Shares to less than 15% by the
Close of Business on the fifth Business Day after notice from the Company (the
date of notice being the first day) that such Person's Beneficial Ownership of
Common Shares so equals or exceeds 15%, such Person shall, at the end of such
five Business Day period, become an Acquiring Person (and such clause (b)(ii)
shall no longer apply to such Person). For purposes of this definition, the
determination whether any
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Person acted in "good faith" shall be conclusively determined by the Board of
Directors of the Company.
"AFFILIATE" and "ASSOCIATE", when used with reference to any
Person, shall have the respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on the
date of this Rights Agreement.
A Person shall be deemed the "BENEFICIAL OWNER" of, and shall
be deemed to "BENEFICIALLY OWN", and shall be deemed to have "BENEFICIAL
OWNERSHIP" of, any securities:
(a) which such Person or any of such Person's Affiliates or
Associates is deemed to "beneficially own" within the meaning of Rule
13d-3 of the General Rules and Regulations under the Exchange Act, as
in effect on the date of this Rights Agreement;
(b) which such Person or any of such Person's Affiliates or
Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (written or oral), or upon
the exercise of conversion rights, exchange rights (other than the
Company's rights under Section 11(b)(i)), rights (other than the
Rights), warrants or options, or otherwise; PROVIDED, HOWEVER, that a
Person shall not be deemed the Beneficial Owner of, or to beneficially
own, or to have Beneficial Ownership of, securities tendered pursuant
to a tender or exchange offer made by or on behalf of such Person or
any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange thereunder, or (ii)
the right to vote pursuant to any agreement, arrangement or
understanding (written or oral); PROVIDED, HOWEVER, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, or to
have Beneficial Ownership of, any security if (A) the agreement,
arrangement or understanding (written or oral) to vote such security
arises solely from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations under the
Exchange Act and (B) the beneficial ownership of such security is not
also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(c) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (written or oral) for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy or consent as described in
clause (b)(ii) of this definition) or disposing of any securities of
the Company.
Notwithstanding the foregoing, nothing contained in this definition shall cause
a Person ordinarily engaged in business as an underwriter of securities to be
the "Beneficial Owner" of, or to "beneficially own", or to have "Beneficial
Ownership" of, any securities acquired in a bona fide firm commitment
underwriting pursuant to an underwriting agreement with the Company.
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"ARTICLES OF AMENDMENT" shall mean the Articles of Amendment
of the Company designating and establishing the Series F Preferred Stock and
setting forth the preferences, limitations and relative rights of such series of
Preferred Stock of the Company, a copy of which is attached as EXHIBIT A.
"BOOK VALUE", when used with reference to Common Shares issued
by any Person, shall mean the amount of equity of such Person applicable to each
Common Share, determined (a) in accordance with generally accepted accounting
principles in effect on the date as of which such Book Value is to be
determined, (b) using all the consolidated assets and all the consolidated
liabilities of such Person on the date as of which such Book Value is to be
determined, except that no value shall be included in such assets for goodwill
arising from consummation of a business combination, and (c) after giving effect
to (i) the exercise of all rights, options and warrants to purchase such Common
Shares (other than the Rights), and the conversion of all securities convertible
into such Common Shares, at an exercise or conversion price, per Common Share,
which is less than such Book Value before giving effect to such exercise or
conversion (whether or not exercisability or convertibility is conditioned upon
occurrence of a future event), (ii) all dividends and other distributions on the
capital stock of such Person declared prior to the date as of which such Book
Value is to be determined and to be paid or made after such date, and (iii) any
other agreement, arrangement or understanding (written or oral), or transaction
or other action prior to the date as of which such Book Value is to be
determined which would have the effect of thereafter reducing such Book Value.
"BUSINESS COMBINATION" shall have the meaning set forth in
Section 11(c)(i).
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in Memphis,
Tennessee are authorized or obligated by law or executive order to close.
"CLOSE OF BUSINESS" on any given date shall mean 5:00 p.m.,
Memphis, Tennessee time, on such date; PROVIDED, HOWEVER, that, if such date is
not a Business Day, "Close of Business" shall mean 5:00 p.m., Memphis, Tennessee
time, on the next succeeding Business Day.
"COMMON SHARES", when used with reference to the Company prior
to a Business Combination, shall mean the shares of Common Stock of the Company
or any other shares of capital stock of the Company into which the Common Stock
shall be reclassified or changed. "Common Shares", when used with reference to
any Person (other than the Company prior to a Business Combination), shall mean
shares of capital stock of such Person (if such Person is a corporation) of any
class or series, or units of equity interests in such Person (if such Person is
not a corporation) of any class or series, the terms of which do not limit (as a
maximum amount and not merely in proportional terms) the amount of dividends or
income payable or distributable on such class or series or the amount of assets
distributable on such class or series upon any voluntary or involuntary
liquidation, dissolution or winding up of such Person and do not provide that
such class or series is subject to redemption at the option of such Person, or
any shares of capital stock or units of equity interests into which the
foregoing shall be reclassified or changed; PROVIDED, HOWEVER, that, if at any
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time there shall be more than one such class or series of capital stock or
equity interests of such Person, "Common Shares" of such Person shall include
all such classes and series substantially in the proportion of the total number
of shares or other units of each such class or series outstanding at such time.
"COMMON STOCK" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement.
"COMPANY" shall have the meaning set forth in the heading of
this Rights Agreement; PROVIDED, HOWEVER, that if there is a Business
Combination, "Company" shall have the meaning set forth in Section 11(c)(iii).
The term "CONTROL" with respect to any Person shall mean the
power to direct the management and policies of such Person, directly or
indirectly, by or through stock ownership, agency or otherwise, or pursuant to
or in connection with an agreement, arrangement or understanding (written or
oral) with one or more other Persons by or through stock ownership, agency or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"DISTRIBUTION DATE" shall have the meaning set forth in
Section 3(b).
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as in effect on the date in question, unless otherwise specifically provided.
"EXCHANGE CONSIDERATION" shall have the meaning set forth in
Section 11(b)(i).
"EXPIRATION DATE" shall have the meaning set forth in Section
7(a).
"FORMULA NUMBER" shall mean 10,000; provided, however, that,
if at any time after January 19, 1999, the Company shall (x) declare or pay any
dividend on the Common Stock payable in shares of Common Stock or make any
distribution on the Common Stock in shares of Common Stock, (y) subdivide (by a
stock split or otherwise) the outstanding shares of Common Stock into a larger
number of shares of Common Stock or (z) combine (by a reverse stock split or
otherwise) the outstanding shares of Common Stock into a smaller number of
shares of Common Stock, then, in each such event, the Formula Number shall be
adjusted to a number determined by multiplying the Formula Number in effect
immediately prior to such event by a fraction, the numerator of which is the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
are outstanding immediately prior to such event (and rounding the result to the
nearest whole number); and provided further, that, if at any time after January
19, 1999, the Company shall issue any shares of its capital stock in a merger,
share exchange, reclassification, or change of the outstanding shares of Common
Stock, then, in each such event, the Formula Number shall be appropriately
adjusted to reflect such merger, share exchange, reclassification or change so
that each share of Preferred Stock continues to be the
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economic equivalent of a Formula Number of shares of Common Stock prior to such
merger, share exchange, reclassification or change.
"MAJOR PART", when used with reference to the assets of the
Company and its Subsidiaries as of any date, shall mean assets (a) having a fair
market value aggregating 50% or more of the total fair market value of all the
assets of the Company and its Subsidiaries (taken as a whole) as of the date in
question, (b) accounting for 50% or more of the total value (net of depreciation
and amortization) of all the assets of the Company and its Subsidiaries (taken
as a whole) as would be shown on a consolidated or combined balance sheet of the
Company and its Subsidiaries as of the date in question, prepared in accordance
with generally accepted accounting principles then in effect, or (c) accounting
for 50% or more of the total amount of earnings before interest, taxes,
depreciation and amortization or of the revenues of the Company and its
Subsidiaries (taken as a whole) as would be shown on, or derived from, a
consolidated or combined statement of income or operations of the Company and
its Subsidiaries for the period of 12 months ending on the last day of the
Company's monthly accounting period next preceding the date in question,
prepared in accordance with generally accepted accounting principles then in
effect.
"MARKET VALUE", when used with reference to Common Shares on
any date, shall be deemed to be the average of the daily closing prices, per
share, of such Common Shares for the period which is the shorter of (a) 30
consecutive Trading Days immediately prior to the date in question or (b) the
number of consecutive Trading Days beginning on the Trading Day immediately
after the date of the first public announcement of the event requiring a
determination of the Market Value and ending on the Trading Day immediately
prior to the record date of such event; PROVIDED, HOWEVER, that, in the event
that the Market Value of such Common Shares is to be determined in whole or in
part during a period following the announcement by the issuer of such Common
Shares of any action of the type described in Section 12(a) that would require
an adjustment thereunder, then, and in each such case, the Market Value of such
Common Shares shall be appropriately adjusted to reflect the effect of such
action on the market price of such Common Shares. The closing price for each
Trading Day shall be the closing price quoted on the principal United States
securities exchange registered under the Exchange Act (or any recognized foreign
stock exchange) on which such securities are listed, or, if such securities are
not listed on any such exchange, the average of the closing bid and asked
quotations with respect to a share of such securities on any National
Association of Securities Dealers, Inc. quotations system, or if no such
quotations are available, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in such securities
selected by the Board of Directors of the Company. If on any such Trading Day no
market maker is making a market in such securities, the closing price of such
securities on such Trading Day shall be deemed to be the fair value of such
securities as determined in good faith by the Board of Directors of the Company
(whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent, the holders of Rights and all
other Persons); PROVIDED, HOWEVER, that for the purpose of determining the
closing price of the Preferred Shares for any Trading Day on which there is no
such market maker for the Preferred Shares the closing price on such Trading Day
shall be deemed to be the Formula Number times the closing price of the Common
Shares of the Company on such Trading Day.
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"PERSON" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
"PREFERRED SHARES" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement. Any reference in this Rights
Agreement to Preferred Shares shall be deemed to include any authorized fraction
of a Preferred Share, unless the context otherwise requires.
"PRINCIPAL PARTY" shall mean the Surviving Person in a
Business Combination; PROVIDED, HOWEVER, that, if such Surviving Person is a
direct or indirect Subsidiary of any other Person, "Principal Party" shall mean
the Person which is the ultimate parent of such Surviving Person and which is
not itself a Subsidiary of another Person. In the event ultimate control of such
Surviving Person is shared by two or more Persons, "Principal Party" shall mean
that Person that is immediately controlled by such two or more Persons.
"PURCHASE PRICE" with respect to each Right shall mean
$180.00, as such amount may from time to time be adjusted as provided herein.
All references herein to the Purchase Price shall mean the Purchase Price as in
effect at the time in question.
"RECORD DATE" shall have the meaning set forth in the
introductory paragraph of this Rights Agreement.
"REDEMPTION DATE" shall have the meaning set forth in Section
24(a).
"REDEMPTION PRICE" with respect to each Right shall mean $.01,
as such amount may from time to time be adjusted in accordance with Section 12.
All references herein to the Redemption Price shall mean the Redemption Price as
in effect at the time in question.
"REGISTERED COMMON SHARES" shall mean Common Shares which are,
as of the date of consummation of a Business Combination, and have continuously
been for the 12 months immediately preceding such date, registered under Section
12 of the Exchange Act.
"RIGHT CERTIFICATE" shall mean a certificate evidencing a
Right or Rights in substantially the form attached as EXHIBIT B.
"RIGHTS" shall mean the rights to purchase Preferred Shares
(or other securities) as provided in this Rights Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as in
effect on the date in question, unless otherwise specifically provided.
"SUBSIDIARY" shall mean a Person, at least a majority of the
total outstanding voting power (being the power under ordinary circumstances
(and not merely upon the happening of a contingency) to vote in the election of
directors of such Person (if such Person is a corporation) or to participate in
the management and control of such Person (if such Person is not a corporation))
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of which is owned, directly or indirectly, by another Person or by one or more
other Subsidiaries of such other Person or by such other Person and one or more
other Subsidiaries of such other Person.
"SURVIVING PERSON" shall mean (a) the Person which is the
continuing or surviving Person in a consolidation or merger or share exchange
specified in Section 11(c)(i)(A) or 11(c)(i)(B) or (b) the Person to which the
Major Part of the assets of the Company and its Subsidiaries is sold, leased,
exchanged or otherwise transferred or disposed of in one or more transactions
specified in Section 11(c)(i)(C); PROVIDED, HOWEVER, that, if the Major Part of
the assets of the Company and its Subsidiaries is sold, leased, exchanged or
otherwise transferred or disposed of in one or more transactions specified in
Section 11(c)(i)(C) to more than one Person, the "Surviving Person" in such case
shall mean the Person that acquired assets of the Company and/or its
Subsidiaries with the greatest fair market value in such transaction or
transactions.
"TRADING DAY" shall mean a day on which the principal national
securities exchange (or principal recognized foreign stock exchange, as the case
may be) on which any securities or Rights, as the case may be, are listed or
admitted to trading is open for the transaction of business or, if the
securities or Rights in question are not listed or admitted to trading on any
national securities exchange (or recognized foreign stock exchange, as the case
may be), a Business Day.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints
the Rights Agent to act as agent for the Company in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint one or more co-Rights Agents as it may
deem necessary or desirable upon notice to the Rights Agent (the term "Rights
Agent" being used herein to refer, collectively, to the Rights Agent together
with any such co-Rights Agents). In the event the Company appoints one or more
co-Rights Agents, the respective duties of the Rights Agent and any co-Rights
Agents shall be set forth in an amendment to this Rights Agreement. As soon as
practicable after the Record Date, the Rights Agent will assist the Company in
mailing a letter summarizing the terms of the Rights to each holder of record of
Common Stock as of the Record Date, at such holder's address as shown by the
records of the Company.
SECTION 3. ISSUE OF RIGHTS AND RIGHT CERTIFICATES. (a) One Right
shall be associated with each Common Share outstanding on the Record Date, each
additional Common Share that shall become outstanding between the Record Date
and the earliest of the Distribution Date, the Redemption Date or the Expiration
Date and each additional Common Share with which Rights are issued after the
Distribution Date but prior to the earlier of the Redemption Date or the
Expiration Date as provided in Section 23; PROVIDED, HOWEVER, that, if the
number of outstanding Rights are combined into a smaller number of outstanding
Rights pursuant to Section 12(a), the appropriate fractional Right determined
pursuant to such Section shall thereafter be associated with each such Common
Share.
(b) Until the earlier of (i) the tenth Business Day (or such
later date as may be determined by the Board of Directors of the Company) after
such time as the Company learns that a Person has become an Acquiring Person or
(ii) the Close of Business on such date, if any, as may
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<PAGE> 15
be designated by the Board of Directors of the Company following the
commencement of, or first public disclosure of an intent to commence, a tender
or exchange offer by any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any of its Subsidiaries,
or any Person holding Common Shares for or pursuant to the terms of any such
employee benefit plan) for outstanding Common Shares, if upon consummation of
such tender or exchange offer such Person could be the Beneficial Owner of 15%
or more of the outstanding Common Shares (the Close of Business on the earlier
of such dates being the "Distribution Date"), (x) the Rights will be evidenced
by the certificates or other evidences of ownership of Common Shares registered
in the names of the holders thereof and not by separate Right Certificates and
(y) the Rights, including the right to receive Right Certificates, will be
transferable only in connection with the transfer of Common Shares. As soon as
practicable after the Distribution Date, the Rights Agent will send, by
first-class, postage-prepaid mail, to each record holder of Common Shares as of
the Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate evidencing one whole Right for each Common Share
(or for the number of Common Shares with which one whole Right is then
associated if the number of Rights per Common Share held by such record holder
has been adjusted in accordance with the proviso in Section 3(a)). If the number
of Rights associated with each Common Share has been adjusted in accordance with
the proviso in Section 3(a), at the time of distribution of the Right
Certificates the Company may make any necessary and appropriate rounding
adjustments so that Right Certificates representing only whole numbers of Rights
are distributed and cash is paid in lieu of any fractional Right in accordance
with Section 15(a). As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(c) Until the earliest of the Distribution Date, the
Redemption Date or the Expiration Date, the Rights associated with Common Shares
shall be evidenced by the evidence of ownership of such Common Shares alone, the
registered holders of the Common Shares shall also be the registered holders of
the associated Rights, and the transfer of any Common Shares shall also
constitute the transfer of the Rights associated with such Common Shares.
(d) Certificates issued for Common Shares after the Record
Date (including, without limitation, upon transfer or exchange of outstanding
Common Shares), but prior to the earliest of the Distribution Date, the
Redemption Date or the Expiration Date, shall have printed on, written on or
otherwise affixed to or attached to them the following legend:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Rights Agreement dated as of
January 19, 1999, as it may be amended from time to time (the "Rights
Agreement"), between Union Planters Corporation (the "Company") and
Union Planters National Bank, as Rights Agent (the "Rights Agent"), the
terms of which are hereby incorporated herein by reference and a copy
of which is on file at the principal executive offices of the Company.
Under certain circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Rights Agent will mail to the holder
of this certificate a copy of the Rights Agreement without charge after
receipt of a written request therefor. Rights beneficially owned by
Acquiring Persons or their Affiliates or Associates (as such
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<PAGE> 16
terms are defined in the Rights Agreement) and by any subsequent holder
of such Rights are null and void and nontransferable.
Notwithstanding this paragraph (d), the omission of a legend
shall not affect the enforceability of any part of this Rights Agreement or the
rights of any holder of Rights.
SECTION 4. FORM OF RIGHT CERTIFICATES. The Right Certificates
(and the form of election to purchase and form of assignment to be printed on
the reverse side thereof) shall be in substantially the form set forth as
EXHIBIT B and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Rights
Agreement, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Sections 7, 11 and 23, the Right
Certificates, whenever issued, shall be dated as of the Distribution Date, and
on their face shall entitle the holders thereof to purchase such number of
Preferred Shares as shall be set forth therein for the Purchase Price set forth
therein, subject to adjustment from time to time as herein provided.
SECTION 5. EXECUTION, COUNTERSIGNATURE AND REGISTRATION. (a) The
Right Certificates shall be executed on behalf of the Company by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer or a Senior Vice President
of the Company, either manually or by facsimile signature, and have affixed
thereto the Company's seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be manually countersigned by
the Rights Agent and shall not be valid or obligatory for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any of
the Right Certificates shall cease to be such an officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates may nevertheless be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as though
the person who signed such Right Certificates had not ceased to be such an
officer of the Company; and any Right Certificate may be signed on behalf of the
Company by any person who, at the actual date of execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of execution of this Rights Agreement any such
person was not such an officer of the Company.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office in Memphis, Tennessee, books
for registration and transfer of the Right Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced by each of the Right Certificates,
the certificate number of each of the Right Certificates and the date of each of
the Right Certificates.
SECTION 6. TRANSFER, SPLIT-UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES;
UNCERTIFICATED RIGHTS. (a) Subject to the provisions of Sections 7(e) and 15, at
any time after the Distribution Date, and at or prior to the
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<PAGE> 17
Close of Business on the earlier of the Redemption Date or the Expiration Date,
any Right Certificate or Right Certificates may be transferred, split-up,
combined or exchanged for another Right Certificate or Right Certificates
representing, in the aggregate, the same number of Rights as the Right
Certificate or Right Certificates surrendered then represented. Any registered
holder desiring to transfer, split-up, combine or exchange any Right Certificate
shall make such request in writing delivered to the Rights Agent and shall
surrender the Right Certificate or Right Certificates to be transferred,
split-up, combined or exchanged at the principal office of the Rights Agent;
PROVIDED, HOWEVER, that neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the transfer of any
Right Certificate surrendered for transfer until the registered holder shall
have completed and signed the certification contained in the form of assignment
on the reverse side of such Right Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall, subject to Sections 7(e)
and 15, countersign and deliver to the Person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split-up,
combination or exchange of Right Certificates.
(b) Upon receipt by the Company or the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a valid Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and, at
the Company's request, reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the Rights Agent
and cancellation of the Right Certificate if mutilated, the Company will make a
new Right Certificate of like tenor and deliver such new Right Certificate to
the Rights Agent for countersignature and delivery to the registered owner in
lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
(c) Notwithstanding any other provision hereof, the Company
and the Rights Agent may amend this Rights Agreement to provide for
uncertificated Rights in addition to or in place of Rights evidenced by Right
Certificates.
SECTION 7. EXERCISE OF RIGHTS; EXPIRATION DATE OF RIGHTS. (a)
Subject to Section 7(e) and except as otherwise provided herein (including
Section 11), each Right shall entitle the registered holder thereof, upon
exercise thereof as provided herein, to purchase for the Purchase Price, at any
time after the Distribution Date and at or prior to the earlier of (i) the Close
of Business on the 10th anniversary of the date of this Rights Agreement (the
Close of Business on such date being the "Expiration Date") or (ii) the
Redemption Date, one-ten-thousandth (1/10,000) of a Preferred Share, subject to
adjustment from time to time as provided in Sections 11 and 12.
(b) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date, upon surrender of the
Right Certificate, with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the principal office of the Rights
Agent in Louisville, Kentucky, together with payment of the Purchase Price for
each one-ten-thousandth
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<PAGE> 18
(1/10,000) of a Preferred Share as to which the Rights are exercised, at or
prior to the earlier of (i) the Expiration Date or (ii) the Redemption Date.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly executed,
accompanied by payment of the Purchase Price for the Preferred Shares to be
purchased together with an amount equal to any applicable transfer tax, in
lawful money of the United States of America, in cash or by certified check or
money order payable to the order of the Company, the Rights Agent shall
thereupon (i) either (A) promptly requisition from any transfer agent of the
Preferred Shares (or make available, if the Rights Agent is the transfer agent)
certificates for the number of Preferred Shares to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests or (B) if the Company shall have elected to deposit the Preferred
Shares with a depositary agent under a depositary arrangement, promptly
requisition from the depositary agent depositary receipts representing the
number of one-ten-thousandth (1/10,000) of a Preferred Share to be purchased (in
which case certificates for the Preferred Shares to be represented by such
receipts shall be deposited by the transfer agent with the depositary agent) and
the Company will direct the depositary agent to comply with all such requests,
(ii) when appropriate, promptly requisition from the Company the amount of cash
to be paid in lieu of issuance of fractional shares in accordance with Section
15, (iii) promptly after receipt of such certificates or depositary receipts,
cause the same to be delivered to or upon the order of the registered holder of
such Right Certificate, registered in such name or names as may be designated by
such holder and (iv) when appropriate, after receipt promptly deliver such cash
to or upon the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate
shall exercise fewer than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining unexercised
shall be countersigned by the Rights Agent and delivered to the registered
holder of such Right Certificate or to his duly authorized assigns, subject to
the provisions of Section 15.
(e) Notwithstanding anything in this Rights Agreement to the
contrary, any Rights that are at any time beneficially owned by an Acquiring
Person or any Affiliate or Associate of an Acquiring Person shall be null and
void and nontransferable, and any holder of any such Right (including any
purported transferee or subsequent holder) shall not have any right to exercise
or transfer any such Right.
(f) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Right
Certificates upon the occurrence of any purported exercise as set forth in this
Section 7 unless such registered holder shall have (i) completed and signed the
certificate contained in the form of election to purchase set forth on the
reverse side of the Right Certificate surrendered for such exercise and (ii)
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
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(g) The Company may temporarily suspend, for a period of time
not to exceed 90 calendar days after the Distribution Date, the exercisability
of the Rights in order to prepare and file a registration statement under the
Securities Act, on an appropriate form, with respect to the Preferred Shares
purchasable upon exercise of the Rights and permit such registration statement
to become effective; PROVIDED, HOWEVER, that no such suspension shall remain
effective after, and the Rights shall without any further action by the Company
or any other Person become exercisable immediately upon, the effectiveness of
such registration statement. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended and shall issue a further public announcement at such time
as the suspension is no longer in effect. Notwithstanding any provision herein
to the contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification under the blue sky or securities laws of such
jurisdiction shall not have been obtained or the exercise of the Rights shall
not be permitted under applicable law.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All
Right Certificates surrendered or presented for the purpose of exercise,
transfer, split-up, combination or exchange shall, and any Right Certificate
representing Rights that have become null and void and nontransferable pursuant
to Section 7(e) surrendered or presented for any purpose shall, if surrendered
or presented to the Company or to any of its agents, be delivered to the Rights
Agent for cancellation or in canceled form, or, if surrendered or presented to
the Rights Agent, shall be canceled by it, and no Right Certificates shall be
issued in lieu thereof except as expressly permitted by this Rights Agreement.
The Company shall deliver to the Rights Agent for cancellation and retirement,
and the Rights Agent shall so cancel and retire, any Right Certificate purchased
or acquired by the Company. The Rights Agent shall deliver all canceled Right
Certificates to the Company so that the Company is able to maintain such
certificates for such period of time as may be required by law, or shall, at the
written request of the Company, destroy such canceled Right Certificates, and in
such case shall deliver a certificate of destruction thereof to the Company.
SECTION 9. RESERVATION AND AVAILABILITY OF PREFERRED SHARES. (a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares, free from
preemptive rights or any right of first refusal, a number of Preferred Shares
sufficient to permit the exercise pursuant to Section 7 or exchange pursuant to
Section 11 in full of all outstanding Rights.
(b) In the event that there shall not be sufficient authorized
but unissued Preferred Shares to permit the exercise or exchange of Rights in
accordance with Section 11, the Company covenants and agrees that it will take
all such action as may be necessary to authorize additional Preferred Shares for
issuance upon the exercise or exchange of Rights pursuant to Section 11;
PROVIDED, HOWEVER, that if the Company is unable to cause the authorization of
additional Preferred Shares, then the Company shall, or in lieu of seeking any
such authorization, the Company may, to the extent necessary and permitted by
applicable law and any agreements or instruments in effect prior to the
Distribution Date to which it is a party, (i) upon surrender of a Right, pay
cash equal to the Purchase Price in lieu of issuing Preferred Shares and
requiring payment therefor, (ii) upon due exercise of a Right and payment of the
Purchase Price for each Preferred Share as to which such
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<PAGE> 20
Right is exercised, issue equity securities having a value equal to the value of
the Preferred Shares which otherwise would have been issuable pursuant to
Section 11, which value shall be determined by a nationally recognized
investment banking firm selected by the Board of Directors of the Company or
(iii) upon due exercise of a Right and payment of the Purchase Price for each
Preferred Share as to which such Right is exercised, distribute a combination of
Preferred Shares, cash and/or other equity and/or debt securities having an
aggregate value equal to the value of the Preferred Shares which otherwise would
have been issuable pursuant to Section 11, which value shall be determined by a
nationally recognized investment banking firm selected by the Board of Directors
of the Company. To the extent that any legal or contractual restrictions
(pursuant to agreements or instruments in effect prior to the Distribution Date
to which it is party) prevent the Company from paying the full amount payable in
accordance with the foregoing sentence, the Company shall pay to holders of the
Rights as to which such payments are being made all amounts which are not then
restricted on a pro rata basis as such payments become permissible under such
legal or contractual restrictions until such payments have been paid in full.
(c) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Preferred Shares delivered
upon exercise or exchange of Rights shall, at the time of delivery of the
certificates for such Preferred Shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and
nonassessable shares.
(d) So long as the Preferred Shares issuable upon the exercise
or exchange of Rights are to be listed on any national securities exchange, the
Company covenants and agrees to use its best efforts to cause, from and after
such time as the Rights become exercisable or exchangeable, all Preferred Shares
reserved for such issuance to be listed on such securities exchange upon
official notice of issuance upon such exercise or exchange.
(e) The Company further covenants and agrees that it will pay
when due and payable any and all Federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of Right
Certificates or of any Preferred Shares or Common Shares or other securities
upon the exercise or exchange of the Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any transfer
or delivery of Right Certificates to a Person other than, or in respect of the
issuance or delivery of certificates or other evidences of ownership of the
Preferred Shares or Common Shares or other securities, as the case may be, in a
name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or exchange or to issue or deliver
any certificates or other evidences of ownership of Preferred Shares or Common
Shares or other securities, as the case may be, upon the exercise or exchange of
any Rights until any such tax shall have been paid (any such tax being payable
by the holder of such Right Certificate at the time of surrender) or until it
has been established to the Company's satisfaction that no such tax is due.
SECTION 10. PREFERRED SHARES RECORD DATE. Each Person in whose name
any certificate or other evidence of ownership of Preferred Shares or Common
Shares or other securities is issued upon the exercise or exchange of Rights
shall for all purposes be deemed to have become the holder of record of the
Preferred Shares or Common Shares or other securities, as the case may
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<PAGE> 21
be, represented thereby on, and such certificate or other evidence of ownership
shall be dated, the date upon which the Right Certificate evidencing such Rights
was duly surrendered and payment of any Purchase Price (and any applicable
transfer taxes) was made; PROVIDED, HOWEVER, that, if the date of such surrender
and payment is a date upon which the transfer books of the Company for the
Preferred Shares or Common Shares or other securities, as the case may be, are
closed, such Person shall be deemed to have become the record holder of such
Preferred Shares or Common Shares or other securities, as the case may be, on,
and such certificate or other evidence of ownership shall be dated as of, the
next succeeding Business Day on which the transfer books of the Company for the
Preferred Shares or Common Shares or other securities, as the case may be, are
open.
SECTION 11. ADJUSTMENTS IN RIGHTS AFTER THERE IS AN ACQUIRING
PERSON; EXCHANGE OF RIGHTS FOR SHARES; BUSINESS COMBINATIONS. (a) Upon a Person
becoming an Acquiring Person, proper provision shall be made so that each holder
of a Right, except as provided in Section 7(e), shall thereafter have a right to
receive, upon exercise thereof for the Purchase Price in accordance with the
terms of this Rights Agreement, such number of ten-thousandths (1/10,000s) of a
Preferred Share as shall equal the result obtained by multiplying the Purchase
Price by a fraction, the numerator of which is the number of ten-thousandths
(1/10,000s) of a Preferred Share for which a Right is then exercisable and the
denominator of which is 50% of the Market Value of the Common Shares on the date
on which a Person becomes an Acquiring Person. As soon as practicable after a
Person becomes an Acquiring Person (provided the Company shall not have elected
to make the exchange permitted by Section 11(b)(i) for all outstanding Rights),
the Company covenants and agrees to use its best efforts to:
(i) prepare and file a registration statement under the
Securities Act, on an appropriate form, with respect to the Preferred Shares
purchasable upon exercise of the Rights;
(ii) cause such registration statement to become effective as
soon as practicable after such filing;
(iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Securities Act)
until the Expiration Date; and
(iv) qualify or register the Preferred Shares purchasable upon
exercise of the Rights under the blue sky or securities laws of such
jurisdictions as may be necessary or appropriate.
(b)(i) The Board of Directors of the Company may, at its
option, at any time after a Person becomes an Acquiring Person, mandatorily
exchange all or part of the then outstanding and exercisable Rights (which shall
not include Rights that shall have become null and void and nontransferable
pursuant to the provisions of Section 7(e)) for consideration per Right
consisting of either (x) one-half of the securities that would be issuable at
such time upon the exercise of one Right in accordance with Section 11(a) or, if
applicable, Section 9(b)(ii) or (iii) or, (y) if applicable, the cash
consideration specified in Section 9(b)(i) (the consideration issuable per Right
pursuant to this Section 11(b)(i) being the "Exchange Consideration"). The Board
of Directors of the Company may, at its option, issue, in substitution for
Preferred Shares, Common Shares in an amount per
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<PAGE> 22
Preferred Share equal to the Formula Number if there are sufficient authorized
but unissued Common Shares. If the Board of Directors of the Company elects to
exchange all or part of the Rights for the Exchange Consideration pursuant to
this Section 11(b)(i) prior to the physical distribution of the Rights
Certificates, the Corporation may distribute the Exchange Consideration in lieu
of distributing Right Certificates, in which case for purposes of this Rights
Agreement holders of Rights shall be deemed to have simultaneously received and
surrendered for exchange Right Certificates on the date of such distribution.
(ii) Any action of the Board of Directors of the Company
ordering the exchange of any Rights pursuant to Section 11(b)(i) shall be
irrevocable and, immediately upon the taking of such action and without any
further action and without any notice, the right to exercise any such Right
pursuant to Section 11(a) shall terminate and the only right thereafter of a
holder of such Right shall be to receive the Exchange Consideration in exchange
for each such Right held by such holder or, if the Exchange Consideration shall
not have been paid or issued, to exercise any such Right pursuant to Section
11(c)(i). The Company shall promptly give public notice of any such exchange;
PROVIDED, HOWEVER, that the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. The Company promptly shall mail a
notice of any such exchange to all holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Shares. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of the Rights for the
Exchange Consideration will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights
which shall have become null and void and nontransferable pursuant to the
provisions of Section 7(e)) held by each holder of Rights.
(c)(i) In the event that, following a Distribution Date,
directly or indirectly, any transactions specified in the following clause (A),
(B) or (C) of this Section 11(c) (each such transaction being a "Business
Combination") shall be consummated:
(A) the Company shall consolidate with, merge with
and into, or enter into a share exchange with any Acquiring Person or
any Affiliate or Associate of an Acquiring Person;
(B) any Acquiring Person or any Affiliate or
Associate of an Acquiring Person shall merge with and into or enter
into a share exchange with the Company and, in connection with such
merger or share exchange, all or part of the Common Shares shall be
changed into or exchanged for capital stock or other securities of the
Company or of any Acquiring Person or Affiliate or Associate of an
Acquiring Person or cash or any other property; or
(C) the Company shall sell, lease, exchange or
otherwise transfer or dispose of (or one or more of its Subsidiaries
shall sell, lease, exchange or otherwise transfer or dispose of), in
one or more transactions, the Major Part of the assets of the Company
and its
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<PAGE> 23
Subsidiaries (taken as a whole) to any Acquiring Person or any
Affiliate or Associate of an Acquiring Person;
then, in each such case, proper provision shall be made so that each holder of a
Right, except as provided in Section 7(e), shall thereafter have the right to
receive, upon the exercise thereof for the Purchase Price in accordance with the
terms of this Rights Agreement, the securities specified below (or, at such
holder's option, the securities specified in Section 11(a)):
(x) if the Principal Party in such Business Combination has Registered
Common Shares outstanding, each Right shall thereafter represent the
right to receive, upon the exercise thereof for the Purchase Price in
accordance with the terms of this Rights Agreement, such number of
Registered Common Shares of such Principal Party, free and clear of all
liens, encumbrances or other adverse claims, as shall have an aggregate
Market Value equal to the result obtained by multiplying the Purchase
Price by two; or
(y) if the Principal Party involved in such Business Combination does
not have Registered Common Shares outstanding, each Right shall
thereafter represent the right to receive, upon the exercise thereof
for the Purchase Price in accordance with the terms of this Rights
Agreement, at the election of the holder of such Right at the time of
the exercise thereof, any of:
(1) such number of Common Shares of the Surviving Person in
such Business Combination as shall have an aggregate Book Value
immediately after giving effect to such Business Combination equal to
the result obtained by multiplying the Purchase Price by two;
(2) such number of Common Shares of the Principal Party in
such Business Combination (if the Principal Party is not also the
Surviving Person in such Business Combination) as shall have an
aggregate Book Value immediately after giving effect to such Business
Combination equal to the result obtained by multiplying the Purchase
Price by two; or
(3) if the Principal Party in such Business Combination is an
Affiliate of one or more Persons which has Registered Common Shares
outstanding, such number of Registered Common Shares of whichever of
such Affiliates of the Principal Party has Registered Common Shares
with the greatest aggregate Market Value on the date of consummation of
such Business Combination as shall have an aggregate Market Value on
the date of such Business Combination equal to the result obtained by
multiplying the Purchase Price by two.
(ii) The Company shall not consummate any Business Combination
unless each issuer of Common Shares for which Rights may be exercised, as set
forth in this Section 11(c), shall have sufficient authorized Common Shares that
have not been issued or reserved for issuance (and which shall, when issued upon
exercise thereof in accordance with this Rights Agreement, be validly issued,
fully paid and nonassessable and free of preemptive rights, rights of first
refusal or any other
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restrictions or limitations on the transfer or ownership thereof) to permit the
exercise in full of the Rights in accordance with this Section 11(c) and unless
prior thereto:
(A) a registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the Common Shares of
such issuer purchasable upon exercise of the Rights, shall be effective
under the Securities Act; and
(B) the Company and each such issuer shall have:
[1] executed and delivered to the Rights Agent a
supplemental agreement providing for the assumption by such issuer of
the obligations set forth in this Section 11(c) (including the
obligation of such issuer to issue Common Shares upon the exercise of
Rights in accordance with the terms set forth in Sections 11(c)(i) and
11(c)(iii)) and further providing that such issuer, at its own expense,
will use its best efforts to:
(x) cause a registration statement under the
Securities Act on an appropriate form, with respect
to the Rights and the Common Shares of such issuer
purchasable upon exercise of the Rights, to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the
Expiration Date;
(y) qualify or register the Rights and the
Common Shares of such issuer purchasable upon
exercise of the Rights under the blue sky or
securities laws of such jurisdictions as may be
necessary or appropriate; and
(z) list the Rights and the Common Shares of
such issuer purchasable upon exercise of the Rights
on each national securities exchange on which the
Common Shares were listed prior to the consummation
of the Business Combination or, if the Common Shares
were not listed on a national securities exchange
prior to the consummation of the Business
Combination, on a national securities exchange;
[2] furnished to the Rights Agent a written opinion
of independent counsel stating that such supplemental agreement is a
valid, binding and enforceable agreement of such issuer; and
[3] filed with the Rights Agent a certificate of a
nationally recognized firm of independent accountants setting forth the
number of Common Shares of such issuer which may be purchased upon the
exercise of each Right after the consummation of such Business
Combination.
(iii) After consummation of any Business Combination and
subject to the provisions of Section 11(c)(ii), (A) each issuer of Common Shares
for which Rights may be exercised as set forth in this Section 11(c) shall be
liable for, and shall assume, by virtue of such Business
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<PAGE> 25
Combination, all the obligations and duties of the Company pursuant to this
Rights Agreement, (B) the term "Company" shall thereafter be deemed to refer to
such issuer, (C) each such issuer shall take such steps in connection with such
consummation as may be necessary to assure that the provisions hereof (including
the provisions of Sections 11(a) and 11(c)) shall thereafter be applicable, as
nearly as reasonably may be, in relation to its Common Shares thereafter
deliverable upon the exercise of the Rights and (D) the number of Common Shares
of each such issuer thereafter receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions of Sections 11 and 12 and the
provisions of Section 7, 9 and 10 with respect to the Preferred Shares shall
apply, as nearly as reasonably may be, on like terms to any such Common Shares.
SECTION 12. CERTAIN ADJUSTMENTS. (a) To preserve the actual or
potential economic value of the Rights, if at any time after the date of this
Rights Agreement there shall be any change in the Common Shares or the Preferred
Shares (other than pursuant to the share dividend declared by the Board of
Directors of the Company as of the date of this Rights Agreement), whether by
reason of share dividends, share splits, recapitalization, mergers,
consolidations, combinations or exchanges of securities, split-ups, splitoffs,
spin-offs, liquidations, other similar changes in capitalization, any
distribution or issuance of cash, assets, evidences of indebtedness or
subscription rights, options or warrants to holders of Common Shares or
Preferred Shares, as the case may be (other than distribution of the Rights or
regular annual cash dividends) or otherwise, then, in each such event the Board
of Directors of the Company shall make such appropriate adjustments in the
number of Preferred Shares (or the number and kind of other securities) issuable
upon exercise of each Right, the Purchase Price and Redemption Price in effect
at such time and the number of Rights outstanding at such time (including the
number of Rights or fractional Rights associated with each Common Share) such
that following such adjustment such event shall not have had the effect of
reducing or limiting the benefits the holders of the Rights would have had
absent such event.
(b) If, as a result of an adjustment made pursuant to Section
12(a), the holder of any Right thereafter exercised shall become entitled to
receive any securities other than Preferred Shares, thereafter the number of
such securities so receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions of Sections 11 and 12 and the provisions of
Sections 7, 9 and 10 with respect to the Preferred Shares shall apply, as nearly
as reasonably may be, on like terms to any such other securities.
(c) All Rights originally issued by the Company subsequent to
any adjustment made to the amount of Preferred Shares or other securities
relating to a Right shall evidence the right to purchase, for the Purchase
Price, the adjusted number and kind of securities purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as
provided herein.
(d) Irrespective of any adjustment or change in the Purchase
Price or the number of Preferred Shares or number or kind of other securities
issuable upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the terms which were expressed in the
initial Right Certificates issued hereunder.
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<PAGE> 26
(e) In any case in which action taken pursuant to Section
12(a) requires that an adjustment be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date
the Preferred Shares and/or other securities, if any, issuable upon such
exercise over and above the Preferred Shares and/or other securities, if any,
issuable before giving effect to such adjustment; PROVIDED, HOWEVER, that the
Company shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional securities upon the
occurrence of the event requiring such adjustment.
SECTION 13. CERTIFICATE OF ADJUSTMENT. Whenever an adjustment is made
as provided in Sections 11 or 12, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with the Rights Agent and with
each transfer agent for the Preferred Shares a copy of such certificate and (c)
mail a brief summary thereof to each holder of a Right Certificate (or, prior to
the Distribution Date, of the Common Shares) in accordance with Section 25. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment therein contained.
SECTION 14. ADDITIONAL COVENANTS. (a) Notwithstanding any other
provision of this Rights Agreement, no adjustment to the number of Preferred
Shares (or fractions of a share) or other securities for which a Right is
exercisable or the number of Rights outstanding or associated with each Common
Share or any similar or other adjustment shall be made or be effective if such
adjustment would have the effect of reducing or limiting the benefits the
holders of the Rights would have had absent such adjustment, including, without
limitation, the benefits under Sections 11 and 12, unless the terms of this
Rights Agreement are amended so as to preserve such benefits.
(b) The Company covenants and agrees that, after the
Distribution Date, except as permitted by Section 26, it will not take (or
permit any Subsidiary of the Company to take) any action if at the time such
action is taken it is intended or reasonably foreseeable that such action will
reduce or otherwise limit the benefits the holders of the Rights would have had
absent such action, including, without limitation, the benefits under Sections
11 and 12. Any action taken by the Company during any period after any Person
becomes an Acquiring Person but prior to the Distribution Date shall be null and
void unless such action could be taken under this Section 14(b) from and after
the Distribution Date. The Company shall not consummate any Business Combination
if any issuer of Common Shares for which Rights may be exercised after such
Business Combination in accordance with Section 11(c) shall have taken any
action that reduces or otherwise limits the benefits the holders of the Rights
would have had absent such action, including, without limitation, the benefits
under Sections 11 and 12.
SECTION 15. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. (a The
Company may, but shall not be required to, issue fractions of Rights or
distribute Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, the Company may pay to the registered holders of the Right
Certificates with regard to which such fractional Rights would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value of a whole Right. For purposes of this Section 15(a), the current market
value of a whole Right shall be the closing price of the
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<PAGE> 27
Rights (as determined pursuant to the second and third sentences of the
definition of Market Value contained in Section 1) for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable.
(b) The Company may, but shall not be required to, issue
fractions of Preferred Shares upon exercise or exchange of the Rights or
distribute certificates which evidence fractional Preferred Shares. In lieu of
fractional Preferred Shares, the Company may elect to (i) utilize a depository
arrangement as provided by the terms of the Preferred Shares or (ii) in the case
of a fraction of a Preferred Share (other than one-ten-thousandth (1/10,000) of
a Preferred Share or any integral multiple thereof), pay to the registered
holders of Right Certificates at the time such Rights are exercised or exchanged
as herein provided an amount in cash equal to the same fraction of the current
market value of one Preferred Share, if any are outstanding and publicly traded
(or the Formula Number times the current market value of one Common Share if the
Preferred Shares are not outstanding and publicly traded). For purposes of this
Section 15(b), the current market value of a Preferred Share (or Common Share)
shall be the closing price of a Preferred Share (or Common Share) (as determined
pursuant to the second and third sentences of the definition of Market Value
contained in Section 1) for the Trading Day immediately prior to the date of
such exercise or exchange. If, as a result of an adjustment made pursuant to
Section 12(a), the holder of any Right thereafter exercised shall become
entitled to receive any securities other than Preferred Shares, the provisions
of this Section 15(b) shall apply, as nearly as reasonably may be, on like terms
to such other securities.
(c) The Company may, but shall not be required to, issue
fractions of Common Shares upon exchange of Rights pursuant to Section 11(b), or
to distribute certificates or other evidences of ownership which evidence
fractional Common Shares. In lieu of such fractional Common Shares, the Company
may pay to the registered holders of the Right Certificates with regard to which
such fractional Common Shares would otherwise be issuable an amount in cash
equal to the same fraction of the current Market Value of one Common Share as of
the effective date of the exchange under Section 11(b).
(d) The holders of Rights by the acceptance of the Right
Certificates (or, prior to the Distribution Date, of the Common Shares)
expressly waives the right to receive any fractional Rights or any fractional
shares upon exercise of a Right except as provided in this Section 15.
SECTION 16. RIGHTS OF ACTION. (a) All rights of action in respect of
this Rights Agreement are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the registered holders
of the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of
the Rights Agent or the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares) may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate in the manner provided
in such Right Certificate and in this Rights Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would
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<PAGE> 28
not have an adequate remedy at law for any breach of this Rights Agreement and
shall be entitled to specific performance of the obligations of any Person
under, and injunctive relief against actual or threatened violations of the
obligations of any Person subject to, this Rights Agreement.
(b) Any holder of Rights who prevails in an action to enforce
the provisions of this Rights Agreement shall be entitled to recover the
reasonable costs and expenses, including attorneys' fees, incurred in such
action.
SECTION 17. TRANSFER AND OWNERSHIP OF RIGHTS AND RIGHT CERTIFICATES.
(a) Prior to the Distribution Date, the Rights will be transferable only in
connection with the transfer of the Common Shares and the Rights associated with
the Common Shares shall be automatically transferred upon the transfer of the
Common Shares.
(b) After the Distribution Date, the Right Certificates will
be transferable, subject to Section 7(e), only on the registry books of the
Rights Agent if surrendered at the principal office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer.
(c) The Company and the Rights Agent may deem and treat the
Person in whose name a Right Certificate (or, prior to the Distribution Date,
the associated certificate or other evidence of ownership of Common Shares) is
registered as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right Certificates
or the associated certificate or other evidence of ownership of Common Shares
made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected by
any notice to the contrary.
SECTION 18. RIGHT CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER. No
holder, as such, of any Right Certificate shall be entitled to vote or receive
dividends or be deemed, for any purpose, the holder of the Preferred Shares or
of any other securities of the Company which may at any time be issuable on the
exercise or exchange of the Rights represented thereby, nor shall anything
contained herein or in any Right Certificate be construed to confer upon the
holder of any Right Certificate, as such, any of the rights of a shareholder of
the Company, including, without limitation, any right to vote for the election
of directors or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting shareholders, or to receive
dividends or other distributions or subscription rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have been exercised or
exchanged in accordance with the provisions hereof.
SECTION 19. CONCERNING THE RIGHTS AGENT. (a) The Company agrees to
pay to the Rights Agent reasonable compensation for all services rendered by it
hereunder from time to time and its reasonable expenses and counsel fees and
other disbursements incurred in the administration and execution of this Rights
Agreement and the exercise and performance of its duties hereunder.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Rights
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Agreement in reliance upon any Right Certificate or certificate or other
evidence of ownership of the Common Shares or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons.
SECTION 20. MERGER OR CONSOLIDATION OR CHANGE OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor Rights Agent
may be merged or with which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding to the stock
transfer or corporate trust business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this Rights Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; PROVIDED that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 22. In
case, at the time such successor Rights Agent shall succeed to the agency
created by this Rights Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and, in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Right Certificates so countersigned; and, in
case at that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right Certificates either
in its prior name or in its changed name; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and in
this Rights Agreement.
SECTION 21. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Rights Agreement upon the following terms
and conditions, by all of which the Company and the holders of Right
Certificates (or, prior to the Distribution Date, of the Common Shares), by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
satisfactory to it (who may be legal counsel for the Company), and the opinion
of such counsel shall be full and complete authorization and protection to the
Rights Agent as to any action taken, suffered or omitted by it in good faith and
in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Rights Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any Acquiring
Person) be proved or established by the Company prior to taking, refraining
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<PAGE> 30
from taking or suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed to
be conclusively proved and established by a certificate signed by any one of the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, a Senior Vice President, the
Treasurer or the Secretary of the Company and delivered to the Rights Agent; and
such certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this Rights
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or wilful misconduct.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Rights Agreement or
in the Right Certificates (except as to its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Rights Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect of
the validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Rights Agreement or in any Right
Certificate; nor shall it have any responsibility with respect to any exercise
of Rights by an Acquiring Person in whose hands the Rights are null and void and
nontransferable unless the Company shall have given actual notice to the Rights
Agent of the identity of any such Acquiring Person; nor shall it be responsible
for any adjustment required under the provisions of Section 11 or 12 or
responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced by Right Certificates
after actual notice of any such adjustment); nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or
reservation of any Preferred Shares or Common Shares to be issued pursuant to
this Rights Agreement or any Right Certificate or as to whether any Preferred
Shares or Common Shares will, when so issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial Officer, a Senior
Vice President, the Secretary or the Treasurer of the Company, and to apply to
such officers for advice and instructions in connection with its duties and it
shall not be liable for any action taken or suffered to be taken by it in good
faith in accordance with instructions of any such officer.
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(h) The Rights Agent and any shareholder, director, officer,
employee or affiliate of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
the Rights Agent under this Rights Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or for any other
legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct provided reasonable care was exercised in
the selection and continued employment thereof.
(j) The Company agrees to indemnify and to hold the Rights
Agent harmless against any loss, liability, damage or expense (including
reasonable fees and expenses of legal counsel) which the Rights Agent may incur
resulting from its actions as Rights Agent pursuant to this Rights Agreement;
PROVIDED, HOWEVER, that the Rights Agent shall not be indemnified or held
harmless with respect to any such loss, liability, damage or expense incurred by
the Rights Agent as a result of, or arising out of, its own negligence, bad
faith or wilful misconduct. The Rights Agent shall notify the Company, by letter
or by facsimile confirmed by letter, of the assertion of any action, proceeding,
suit or claim against the Rights Agent, promptly after the Rights Agent shall
have notice of any such assertion of an action, proceeding, suit or claim or
have been served with the summons or other first legal process giving
information as to the nature and basis of the action, proceeding, suit or claim.
The Company shall not be liable with respect to any such action, proceeding,
suit or claim to the extent that any failure of the Rights Agent so to notify
promptly the Company prejudices the rights of the Company with respect to such
action, proceeding, suit or claim. The Company shall at its own expense assume
the defense of any such action, proceeding, suit or claim. In the event that the
Company assumes such defense, the Company shall not thereafter be liable for the
fees and expenses of any additional counsel retained by the Rights Agent, so
long as the Company shall retain counsel satisfactory to the Rights Agent, in
the exercise of its reasonable judgment, to defend such action, proceeding, suit
or claim. In the event the Company fails so to defend, the Rights Agent agrees
not to settle any litigation in connection with any action, proceeding, suit or
claim with respect to which it may seek indemnification from the Company without
the prior written consent of the Company.
(k) The Rights Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of Right
Certificates shall furnish the Rights Agent with security and indemnity to its
satisfaction for any costs and expenses which may be incurred.
(l) The Rights Agent shall not be liable for failure to
perform any duties except as specifically set forth herein and no implied
covenants or obligations shall be read into this Agreement against the Rights
Agent, whose duties and obligations are ministerial and shall be determined
solely by the express provisions hereof.
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<PAGE> 32
SECTION 22. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Rights Agreement upon 30 days' notice in writing mailed to the Company and to
each transfer agent of the Common Shares and the Preferred Shares by registered
or certified mail, and to the holders of the Right Certificates (or, prior to
the Distribution Date, of the Common Shares) by first-class mail. The Company
may remove the Rights Agent or any successor Rights Agent upon 30 days' notice
in writing, mailed to the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent of the Common Shares and the Preferred Shares
by registered or certified mail, and to the holders of the Right Certificates
(or, prior to the Distribution Date, of the Common Shares) by first-class mail.
If the Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of 30 days
after giving notice of such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Right Certificate (or, prior to the Distribution Date, of the
Common Shares) who shall, with such notice, submit his Right Certificate (or,
prior to the Distribution Date, the certificate or other evidence of ownership
of his Common Shares) for inspection by the Company, then the registered holder
of any Right Certificate (or, prior to the Distribution Date, of the Common
Shares) may apply to any court of competent jurisdiction for the appointment of
a new Rights Agent. Any successor Rights Agent, whether appointed by the Company
or by such a court, shall be a corporation organized and doing business under
the laws of the United States or of any state of the United States, in good
standing, having a principal office in the United States, which is authorized
under such laws to exercise stock transfer or corporate trust powers and is
subject to supervision or examination by Federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000; PROVIDED that the principal transfer agent for
the Common Shares shall in any event be qualified to be the Rights Agent. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Shares and the
Preferred Shares, and mail a notice thereof in writing to the registered holders
of the Right Certificates (or, prior to the Distribution Date, of the Common
Shares). Failure to give any notice provided for in this Section 22, however, or
any defect therein shall not affect the legality or validity of the resignation
or removal of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
SECTION 23. ISSUANCE OF ADDITIONAL RIGHTS AND RIGHT CERTIFICATES.
Notwithstanding any of the provisions of this Rights Agreement or of the Rights
to the contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change made in accordance with the provisions of this
Rights Agreement. In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the earlier of the
Redemption Date and the Expiration Date, the Company (a) shall, with respect to
Common Shares so issued or sold pursuant to the
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<PAGE> 33
exercise of stock options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities, notes or debentures issued by
the Company, and (b) may, in any other case, if deemed necessary or appropriate
by the Board of Directors of the Company, issue Rights and distribute Right
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; PROVIDED, HOWEVER, that (x) no such Rights shall be
issued if, and to the extent that, the Company shall be advised by counsel that
such issuance would create a significant risk of material adverse tax
consequences to the Company or the Person to whom such Rights would be issued,
and (y) no such Rights shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof.
SECTION 24. REDEMPTION AND TERMINATION. (a) The Board of Directors
of the Company may, at its option, at any time prior to the earlier of (i) the
tenth Business Day (or such later date as may be determined by the Board of
Directors of the Company) after such time as a Person becomes an Acquiring
Person and (ii) the Expiration Date, order the redemption of all, but not fewer
than all, the then outstanding Rights at the Redemption Price (the date of such
redemption being the "Redemption Date"), and the Company, at its option, may pay
the Redemption Price either in cash or Common Shares or other securities of the
Company deemed by the Board of Directors of the Company, in the exercise of its
sole discretion, to be at least equivalent in value to the Redemption Price.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights, and without any further
action and without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to receive the
Redemption Price. Within 10 Business Days after the action of the Board of
Directors of the Company ordering the redemption of the Rights, the Company
shall give notice of such redemption to the holders of the then outstanding
Rights by mailing such notice to all such holders at their last addresses as
they appear upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent for the Common
Shares. Each such notice of redemption will state the method by which payment of
the Redemption Price will be made. The notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or not
the holder of Rights receives such notice. In any case, failure to give such
notice by mail, or any defect in the notice, to any particular holder of Rights
shall not affect the sufficiency of the notice to other holders of Rights.
SECTION 25. NOTICES. Subject to the provisions of Section 22,
notices or demands authorized by this Agreement to be given or made by the
Rights Agent or by the holder of a Right Certificate (or, prior to the
Distribution Date, of the Common Shares) to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights Agent) as
follows:
Union Planters Corporation
7130 Goodlett Farms Parkway
Memphis, Tennessee 38018
Attn: General Counsel
26
<PAGE> 34
Subject to the provisions of Section 22, any notice or demand authorized by this
Rights Agreement to be given or made by the Company or by the holder of a Right
Certificate (or, prior to the Distribution Date, of the Common Shares) to or on
the Rights Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Company) as follows:
Union Planters National Bank
7130 Goodlett Farms Parkway
Cordova, Tennessee 38018
Attn: General Counsel
Notices or demands authorized by this Rights Agreement to be given or made by
the Company or the Rights Agent to any holder of a Right Certificate (or, prior
to the Distribution Date, of the Common Shares) shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the Rights Agent
or, prior to the Distribution Date, on the registry books of the transfer agent
for the Common Shares.
SECTION 26. SUPPLEMENTS AND AMENDMENTS. At any time prior to the
Distribution Date and subject to the last sentence of this Section 26, the
Company may, and the Rights Agent shall if the Company so directs, supplement or
amend any provision of this Rights Agreement (including, without limitation, the
date on which the Distribution Date shall occur or the time during which the
Rights may be redeemed pursuant to Section 24) and the Company may amend any
provision of the Articles of Amendment without the approval of any holder of the
Rights. From and after the Distribution Date and subject to applicable law, the
Company may, and the Rights Agent shall if the Company so directs, amend this
Rights Agreement without the approval of any holders of Right Certificates (a)
to cure any ambiguity or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provision of this Rights
Agreement or (b) to make any other provisions in regard to matters or questions
arising hereunder which the Company may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Right Certificates
(other than an Acquiring Person or an Affiliate or Associate of an Acquiring
Person). Any supplement or amendment to this Rights Agreement duly approved by
the Company that does not amend Sections 19, 20, 21 or 22 in a manner adverse to
the Rights Agent shall become effective immediately upon execution by the
Company, whether or not also executed by the Rights Agent. In addition,
notwithstanding anything to the contrary contained in this Rights Agreement, no
supplement or amendment to this Rights Agreement shall be made which (x) reduces
the Redemption Price (except as required by Section 12(a)), or (y) provides for
an earlier Expiration Date or (z) changes the rights or duties of the Rights
Agent without the consent of the Rights Agent.
SECTION 27. SUCCESSORS. All the covenants and provisions of this
Rights Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
27
<PAGE> 35
SECTION 28. BENEFITS OF RIGHTS AGREEMENT: DETERMINATIONS AND ACTIONS
BY THE BOARD OF DIRECTORS, ETC. (a) Nothing in this Rights Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, of the Common Shares) any legal or equitable right, remedy or claim under
this Rights Agreement; but this Rights Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, of the Common
Shares).
(b) Except as explicitly otherwise provided in this Rights
Agreement, the Board of Directors of the Company shall have the exclusive power
and authority to administer this Rights Agreement and to exercise all rights and
powers specifically granted to the Board of Directors of the Company or to the
Company, or as may be necessary or advisable in the administration of this
Rights Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Rights Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this
Rights Agreement (including, without limitation, a determination to redeem or
not redeem the Rights or to amend this Rights Agreement and whether there is an
Acquiring Person).
(c) Nothing contained in this Rights Agreement shall be deemed
to be in derogation of the obligation of the Board of Directors of the Company
to exercise its fiduciary duty. Without limiting the foregoing, nothing
contained herein shall be construed to suggest or imply that the Board of
Directors shall not be entitled to reject any tender offer, or to recommend that
holders of Common Shares reject any tender offer, or to take any other action
(including, without limitation, the commencement, prosecution, defense or
settlement of any litigation and the submission of additional or alternative
offers or other proposals) with respect to any tender offer that the Board of
Directors believes is necessary or appropriate in the exercise of such fiduciary
duty.
SECTION 29. SEVERABILITY. If any term, provision, covenant or
restriction of this Rights Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Rights
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
SECTION 30. GOVERNING LAW. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the law
of the State of Kentucky and for all purposes shall be governed by and construed
in accordance with the law of such State applicable to contracts to be made and
performed entirely within such State.
SECTION 31. COUNTERPARTS; EFFECTIVENESS. This Rights Agreement may
be executed in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. This Rights Agreement shall
be effective as of the Close of Business on the date hereof.
28
<PAGE> 36
SECTION 32. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Rights Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
of this Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed as of the day and year first above written.
UNION PLANTERS CORPORATION
By:/S/ E. JAMES HOUSE, JR.
Title: Corporate Secretary
UNION PLANTERS NATIONAL BANK
By: /S/ E. JAMES HOUSE, JR.
Title: Secretary and Cashier
29
<PAGE> 37
EXHIBIT A
<PAGE> 38
SERIES F PREFERRED STOCK
(f) Pursuant to the authority vested in the Board of Directors in
accordance with the provisions of this ARTICLE SIXTH of the Charter, the Board
of Directors does hereby create, authorize and provide for the issuance of
Series F Preferred Stock out of the class of 10,000,000 shares of preferred
stock, no par value (the "Preferred Stock"), having the voting powers,
designation, relative, participating, optional and other special rights,
preferences, and qualifications, limitations and restrictions thereof that are
set forth as follows:
(1) DESIGNATION AND AMOUNT. The shares of such series shall be
designated as Series F Preferred Stock ("Series F Preferred Stock") and the
number of shares constituting such series shall be 300,000. Such number of
shares may be adjusted by appropriate action of the Board of Directors.
(2) DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the prior and superior rights of the holders of
any shares of any other series of Preferred Stock or any other shares of
preferred stock of the Corporation ranking prior and superior to the shares of
Series F Preferred Stock with respect to dividends, each holder of one-
ten-thousandth (1/10,000) of a share (a "Unit") of Series F Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available for that purpose, (i) dividends payable in cash
on the 1st day of January, April, July and October in each year (each such date
being a "Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of such Unit of Series F
Preferred Stock, in an amount per Unit (rounded to the nearest cent) equal to
the greater of (x) $.01 or (y) subject to the provision for adjustment
hereinafter set forth, the aggregate per share amount of all cash dividends
declared on shares of the common stock of the Corporation, par value $5.00 per
share, (the "Common Stock") since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of a Unit of Series F Preferred Stock, and (ii) subject
to the provision for adjustment hereinafter set forth, quarterly distributions
(payable in kind) on each Quarterly Dividend Payment Date in an amount per Unit
equal to the aggregate per share amount of all non-cash dividends or other
distributions (other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding share of Common Stock, by reclassification or
otherwise) declared on shares of Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or with respect to the first Quarterly Dividend
Payment Date, since the first issuance of a Unit of Series F Preferred Stock. In
the event that the Corporation shall at any time after January 19, 1999 (the
"Rights Declaration Date") (i) declare or pay any dividend on outstanding shares
of Common Stock payable in shares of Common Stock, or (ii) subdivide outstanding
shares of Common Stock or (iii) combine outstanding shares of Common Stock into
a smaller number of shares, then in each such case the amount to which the
holder of a Unit of Series F Preferred Stock was entitled immediately prior to
such event pursuant to the preceding sentence shall be adjusted by multiplying
such amount of a fraction the numerator of which shall be the number of shares
of Common Stock that are outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
A-1
<PAGE> 39
(b) The Corporation shall declare a dividend or distribution
on Units of Series F Preferred Stock as provided in paragraph (a) above
immediately after it declares a dividend or distribution on the shares of Common
Stock (other than a dividend payable in shares of Common Stock); provided,
however that, in the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend payment Date, a dividend of $.01
per Unit on the Series F Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and shall be cumulative on
each outstanding Unit of Series F Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issuance of such Unit of Series F
Preferred Stock, unless the date of issuance of such Unit is prior to the record
date for the First Quarterly Dividend Payment Date, in which case, dividends on
such Unit shall begin to accrue from the date of issuance of such Unit, or
unless the date of issuance is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of Units of Series F
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on Units of
Series F Preferred Stock in an amount less than the aggregate amount of all such
dividends at the time accrued and payable on such Units shall be allocated pro
rata on a unit-by-unit basis amount all Units of Series F Preferred Stock at the
time outstanding. The Board of Directors may fix a record date for the
determination of holders of Units of Series F Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 30 days prior to the date fixed for the payment
thereof.
(3) VOTING RIGHTS. The holders of Units of Series F Preferred Stock
shall have the following voting rights.
(a) Subject to the provision for adjustment hereinafter set
forth, each Unit of Series F Preferred Stock shall entitle the holder thereof to
one vote on all matters submitted to a vote of the shareholders of the
Corporation. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock or (iii) combine the outstanding shares of Common Stock into a smaller
number of shares, then in each such case the number of votes per Unit to which
holders of Units of Series F Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law, the holders
of Units of Series F Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
shareholders of the Corporation.
A-2
<PAGE> 40
(c) Except as set forth herein or required by law, holders of
Units of Series F Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of shares of Common Stock as set forth herein) for the taking of
any corporate action.
(4) CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or
distributions payable on Units of Series F Preferred Stock as provided in
paragraph 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on outstanding Units of
Series F Preferred Stock shall have been paid (or set aside for payment) in
full, the Corporation shall not:
(i) declare or pay dividends on, make any other
distributions or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior to the Series F
Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity as to
dividends with the Series F Preferred Stock, except for dividends paid
ratably on Units of Series F Preferred Stock and shares of all such
parity stock on which dividends are payable or in arrears in proportion
to the total amounts to which the holders of such Units and all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series F Preferred Stock, provided, however, that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any such
parity stock in exchange for shares of any stock ranking junior (both
as to dividends and upon liquidation, dissolution or winding up) to the
Series F Preferred Stock; or
(iv) purchase or otherwise acquire for consideration
any Units of Series F Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such Units.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (a) of
this paragraph 4, purchase or otherwise acquire such shares at such time and in
such manner.
(5) REACQUIRED SHARES. Any Units of Series F Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. All such Units
shall, upon their cancellation, become authorized but unissued Units of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
A-3
<PAGE> 41
(6) LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (i) to the
holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series F Preferred Stock unless
the holders of Units of Series F Preferred Stock shall have received, subject to
adjustment as hereinafter provided in paragraph (b), the greater of either (y)
$180.00 per Unit plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the date of such
payment, or (z) the amount equal to the aggregate per share amount to be
distributed to holders of shares of Common Stock, or (ii) to the holders of
shares of stock ranking on a parity upon liquidation, dissolution or winding up
with the Series F Preferred Stock, unless simultaneously therewith distributions
are made ratably on Units of Series F Preferred Stock and all other shares of
such parity stock in proportion to the total amounts to which the holders of
Units of Series F Preferred Stock are entitled under Clause (i)(y) of this
sentence and to which the holders of such shares of such parity stock are
entitled, in each case upon such liquidation dissolution or winding up.
(b) in the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on outstanding shares of Common
Stock payable in shares of Common Stock, or (ii) subdivide outstanding shares of
Common Stock, or (iii) combine outstanding shares of Common Stock into a smaller
number of shares, then in each such case the aggregate amount to which holders
of Units of Series F Preferred Stock were entitled immediately prior to such
event pursuant to clause (i)(z) of paragraph (1) of this paragraph 6 shall be
adjusted by multiplying such amount by a fraction the numerator of which shall
be the number of shares of Common Stock that are outstanding immediately after
such event and the denominator of which shall be the number of shares of Common
Stock that were outstanding immediately prior to such event.
(7) SHARE EXCHANGE, MERGER, ETC. In case the Corporation shall enter
into any share exchange, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or converted into other stock or
securities, cash and/or any other property, then in any such case Units of
Series F Preferred Stock shall at the same time be similarly exchanged for or
converted into an amount per Unit (subject to the provision for adjustment
hereinafter set forth) equal to the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is converted or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date (i) declare any
dividend on outstanding shares of Common Stock payable in shares of Common
Stock, or (ii) subdivide outstanding shares of Common Stock, or (iii) combine
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the immediately preceding sentence with respect to the
exchange or conversion of shares of Series F Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
A-4
<PAGE> 42
(8) REDEMPTION. The Units of Series F Preferred Stock shall not be
redeemable at the option of the Corporation or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Corporation may
acquire Units of Series F Preferred Stock in any other manner permitted by law
and the Charter or Bylaws of the Corporation.
(9) RANKING. The Units of Series F Preferred Stock shall rank junior
to all other series of the Preferred Stock and to any other class of preferred
stock that hereafter may be issued by the Corporation as to the payment of
dividends and the distribution of assets, unless the terms of any such series or
class shall provide otherwise.
(10) AMENDMENT. The Charter, including without limitation the
provisions hereof, shall not hereafter be amended, either directly or
indirectly, or through merger or share exchange with another corporation, in any
manner that would alter or change the powers, preferences or special rights of
the Series F Preferred Stock so as to affect the holders thereof adversely
without the affirmative vote of the holders of a majority or more of the
outstanding Units of Series F Preferred Stock, voting separately as a class.
(11) FRACTIONAL SHARES. The Series F Preferred Stock may be issued in
Units or other fractions of a share, which Units or fractions shall entitle the
holder, in proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series F Preferred Stock.
A-5
<PAGE> 43
EXHIBIT B
<PAGE> 44
[Form of Right Certificate]
Certificate No. [R]
Rights
NOT EXERCISABLE AFTER JANUARY 19, 2009, OR EARLIER, IF
REDEEMED OR MANDATORILY EXCHANGED BY THE COMPANY. THE RIGHTS
ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT
$.01 PER RIGHT, ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR
AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND BY ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS ARE NULL AND VOID AND
NONTRANSFERABLE.
Right Certificate
UNION PLANTERS CORPORATION
This certifies that _______________________, or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of January 19, 1999 (the "Rights
Agreement"), between Union Planters Corporation, a Tennessee corporation (the
"Company"), and Union Planters National Bank, as Rights Agent (the "Rights
Agent"), unless the Rights evidenced hereby shall have been previously redeemed
or mandatorily exchanged by the Company, to purchase from the Company at any
time after the Distribution Date (as defined in the Rights Agreement) and prior
to 5:00 p.m., Memphis, Tennessee time, on the 10th anniversary of the date of
the Rights Agreement (the "Expiration Date"), at the principal office of the
Rights Agent, or its successors as Rights Agent, in Memphis, Tennessee,
one-ten-thousandth (1/10,000) of a fully paid, nonassessable share of Series F
Preferred Stock, without par value, of the Company (the "Preferred Shares"), at
a purchase price per one-ten-thousandth (1/10,000) of a share equal to $180.00
(the "Purchase Price"), payable in cash, upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which may
be purchased upon exercise of each Right evidenced by this Right Certificate, as
set forth above, are the Purchase Price and the number and kind of shares which
may be so purchased as of January 19, 1999. As provided in the Rights Agreement,
the Purchase Price and the number and kind of shares which may be purchased upon
the exercise of each Right evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
If the Rights evidenced by this Right Certificate are at any
time beneficially owned by an Acquiring Person or an Affiliate or Associate of
an Acquiring Person (as such terms are defined in the Rights Agreement), such
Rights shall be null and void and nontransferable and the
<PAGE> 45
holder of any such Right (including any purported transferee or subsequent
holder) shall not have any right to exercise or transfer any such Right.
This Right Certificate is subject to all the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof, and
reference to the Rights Agreement is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of the Rights
Agent and are also available from the Company upon written request.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal stock transfer or corporate trust
office of the Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number and kind of shares as the Rights evidenced
by the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may be redeemed by the Company at its option
at a redemption price (in cash or shares of Common Stock or other securities of
the Company deemed by the Board of Directors to be at least equivalent in value)
of $.01 per Right (which amount shall be subject to adjustment as provided in
the Rights Agreement) at any time prior to the earlier of (a) the tenth Business
Day (as such term is defined in the Rights Agreement) (or such later date as may
determined by the Board of Directors of the Company) after such time as a Person
becomes an Acquiring Person and (b) the Expiration Date.
The Company may, but shall not be required to, issue fractions
of Preferred Shares or distribute certificates which evidence fractions of
Preferred Shares upon the exercise of any Right or Rights evidenced hereby. In
lieu of issuing fractional shares, the Company may elect to make a cash payment
as provided in the Rights Agreement for fractions of a share other than
one-ten-thousandth (1/10,000) of a share or any integral multiple thereof or to
issue certificates or to utilize a depositary arrangement as provided in the
terms of the Rights Agreement and the Preferred Shares.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company, including, without limitation,
any right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Agreement), or to receive
dividends or other distributions or
B-2
<PAGE> 46
subscription rights, or otherwise, until the Right or Rights evidenced by this
Right Certificate shall have been exercised as provided in accordance with the
provisions of the Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of: ______________
UNION PLANTERS CORPORATION
By:
Name:
Title:
Attest:
Name:
Title:
Countersigned:
UNION PLANTERS NATIONAL BANK,
as Rights Agent
By:
Authorized Officer
B-3
<PAGE> 47
[On Reverse Side of Right Certificate]
FORM OF ELECTION TO PURCHASE (To be
executed by the registered holder if such
holder desires to exercise the Rights
represented by this Right Certificate.)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise Rights
represented by this Right Certificate to purchase the Preferred Shares (or other
shares) issuable upon the exercise of such Rights and requests that certificates
for such shares be issued in the name of:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced
by this Right Certificate, a new Right Certificate for the balance remaining of
such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated:
Signature
Signature Guaranteed:
B-4
<PAGE> 48
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer the Right Certificate.)
FOR VALUE RECEIVED, _________________________ hereby sells, assigns and
transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _________________ Attorney, to
transfer the within Right Certificate on the books of the within-named
Corporation, with full power of substitution.
Dated:
Signature
Signature Guaranteed:
The undersigned hereby certifies that (a) the Rights evidenced by this
Right Certificate are not being sold, assigned or transferred by or on behalf of
a Person who is or was an Acquiring Person or an Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement), (b) this Right Certificate
is not being sold, assigned or transferred to or on behalf of any such Acquiring
Person, Affiliate or Associate, and (c) after inquiry and to the best knowledge
of the undersigned, the undersigned did not acquire the Rights evidenced by this
Right Certificate from any Person who is or was an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement).
Signature
NOTICE
The signature on the foregoing Form of Election to Purchase or Form of
Assignment must correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
B-5
<PAGE> 49
EXHIBIT 3
AMENDED AND RESTATED CHARTER
OF UNION PLANTERS CORPORATION
Pursuant to the Tennessee Business Corporation Act (the "Act") and
Chapters 12- 27 of Title 48 of the Tennessee Code, UNION PLANTERS CORPORATION, a
corporation organized and existing under the Act, does hereby certify:
FIRST: The name of the corporation is Union Planters Corporation (the
"Corporation").
SECOND: The Amended and Restated Charter of the Corporation in the
form attached hereto as EXHIBIT A was duly adopted in
accordance with Sections 48-16-102 and 48-20-107 of the Act by
the board of directors of the Corporation on December 17, 1998.
No shareholder action was required or taken.
THIRD: The text of the amended portion of the Restated Charter is the
text set forth under the heading Series F Preferred Stock in
ARTICLE SIXTH of the attached Amended and Restated Charter.
FOURTH: The Amended and Restated Charter of the Corporation so adopted
reads in full as set forth in EXHIBIT A attached hereto and
is hereby incorporated herein by this reference.
<PAGE> 50
IN WITNESS WHEREOF, Union Planters Corporation has caused this Amended
and Restated Charter to be signed by the undersigned officer of Union Planters
Corporation on its behalf this 18th day of January, 1999.
UNION PLANTERS CORPORATION
By: /s/ E. JAMES HOUSE, JR.
Name: E. James House, Jr.
Title: Secretary
<PAGE> 51
AMENDED AND RESTATED CHARTER
OF
UNION PLANTERS CORPORATION
--------------------------
FIRST: CORPORATE NAME:
The name of the Corporation is:
* * * UNION PLANTERS CORPORATION * * *
(hereinafter sometimes referred to as the "Corporation").
SECOND: DURATION:
The duration of the Corporation is perpetual.
THIRD: PRINCIPAL OFFICE:
The address of the principal office of the Corporation in the State of Tennessee
shall be 7130 Goodlett Farms Parkway, in the City of Cordova, County of Shelby.
The registered agent is E. James House, Jr., 7130 Goodlett Farms Parkway,
Cordova, Shelby County, Tennessee 38018.
FOURTH: TYPE OF CORPORATION:
The corporation is for profit.
FIFTH: CORPORATE PURPOSES:
Subject to any limitations which may be imposed upon its activities by
applicable law, the Corporation is formed to engage in any lawful act or
activity for which corporations may be organized under the Tennessee Business
Corporation Act. Specifically, but not by way of limitation, the Corporation is
formed for the following purposes:
(a) To acquire by purchase; by subscription; by exchange; in exchange
for its Common Stock, Preferred Stock, bonds, debentures or other
obligations; or to acquire in any other manner; or to organize DE NOVO;
and to take, receive, hold, own, sell, assign, transfer, exchange,
pledge, hypothecate, dispose of or otherwise deal with any interest in
any business whether or not represented by shares of stock, shares,
bonds, debentures, notes, participation certificates, warrants, rights,
options, and without limitation any securities or instruments
evidencing rights or options to receive, purchase or subscribe for any
interest in any business (wherever located or organized) or any
securities, whether issued by or created by any person, firm,
association, corporation, national banking association, state-chartered
bank, trust company, savings bank, business trust, syndicate, limited
partnership, organization, or by any other entity; and to possess and
exercise in respect thereof any and all of the rights, powers and
privileges of owners or holders who are natural persons including,
without limitation, the exercise of any voting rights pertaining
thereto;
(b) To purchase or otherwise acquire any property, tangible or
intangible, whether real, personal or mixed and wherever located and to
receive, hold, manage, use, dispose of and otherwise exercise all
rights, powers and privileges of ownership thereof;
(c) To promote, finance, advise, counsel and assist in any way, any
person or any business entity in which the Corporation shall have any
interest of any kind;
(d) To do all things necessary or desirable to enhance the value of or
to protect or preserve the interest of the Corporation in any business
entity, securities or other property of any type which it may own or in
which it may have any interest of any kind; and
(e) To render assistance, counsel and advice to any person or entity
and to serve or represent the same in any capacity whatsoever, whether
or not the Corporation shall have any ownership interest in such person
or entity.
SIXTH: CAPITAL STOCK:
The total number of shares of all classes of stock to which the Corporation
shall have authority to issue is three hundred and ten million (310,000,000)
shares, which shall be divided into two classes as follows: ten million
(10,000,000) shares of Preferred Stock without par value (Preferred Stock) and
three hundred million (300,000,000) shares of Common Stock of the par value of
$5.00 per share (Common Stock). The designations, voting powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions of the above classes of stock and other general
provisions relating thereto shall be as follows:
Page 1 of Union Planters Corporation Charter
<PAGE> 52
PREFERRED STOCK
(a) Shares of Preferred Stock may be issued in one or more series at
such time or times and for such consideration or considerations as the Board of
Directors may determine. All shares of any one series shall be of equal rank and
identical in all respects except the dates from which dividends accrue or
accumulate with respect thereto may vary.
(b) The Board of Directors is expressly authorized at any time, and
from time to time, to provide for the issuance of shares of Preferred Stock in
one or more series, with such voting powers, full or limited, but not to exceed
one vote per share, or without voting powers and with such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions providing for the issuance thereof
adopted by the Board of Directors, and as are not stated and expressed in this
Charter, or any Amendment thereto, including, (but without limiting the
generality of the foregoing) the following:
(1) The distinctive designation and number of shares
comprising such series, which number may (except where otherwise provided by the
Board of Directors in creating such series) be increased or decreased (but not
below the number of shares then outstanding) from time to time by action of the
Board of Directors;
(2) The dividend rate or rates on the shares of such series
and the relation which such dividends shall bear to the dividends payable on any
other class or classes of capital stock; the terms and conditions upon which and
the periods in respect of which dividends shall be payable; whether and upon
what conditions such dividends shall be cumulative, non-cumulative or partially
cumulative and, if cumulative or partially cumulative, the date or dates from
which dividends shall accumulate;
(3) Whether the shares of such series shall be callable or
redeemable, the limitations and restrictions with respect to such call or
redemption, the time or times when, the price or prices at which, and the manner
in which such shares shall be callable or redeemable, including the manner of
selecting shares of such series for call or redemption if less than all shares
are to be called or redeemed;
(4) The amount payable upon shares of such series upon the
voluntary or involuntary liquidation, dissolution, distribution of assets or
winding up of the Corporation;
(5) Whether the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund, and, if so, whether and
upon what conditions such purchase, retirement sinking fund shall be cumulative,
partially cumulative or non-cumulative, the extent to which and the manner in
which such fund shall be applied to the purchase, call or redemption of the
shares or such series for retirement or to other corporate purposes and the
terms and provisions relative to the operation thereof;
(6) Whether the shares of such series shall be convertible
into or exchangeable for shares of any other class or classes or of any other
series of any class or classes of capital stock of the Corporation, and, if so
convertible or exchangeable, the price or prices or the rate or rates of
conversion or exchange, and the method, if any, of adjusting the same, and any
other terms and conditions of such conversion or exchange, provided, however,
that no shares of any such series shall be convertible into shares of any other
class or series having prior or superior rights and preferences as to dividends
or distributions of assets upon liquidation, and provided further that shares
without par value shall not be convertible into shares with par value unless
that part of the stated capital of the Corporation represented by such shares
without par value is, at the time of conversion, at least equal to the aggregate
par value of the shares into which the shares without par value are to be
converted;
(7) The voting powers, full and/or limited, if any, of the
shares of such series; and whether and under what conditions the shares of such
series (alone or together with the shares of one or more other series having
similar provisions) shall be entitled to vote separately as a single class, for
the election of one or more additional directors of the Corporation in case of
dividend arrearage or other specified events, or upon other specified matters;
(8) Whether the issuance of any additional shares of such
series, or of any shares of any other series, shall be subject to restrictions
as to issuance, or as to the powers, preferences or rights of any such other
series; and
(9) Any other preferences, privileges and powers, and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions of such series, as the Board of Directors may deem
advisable and as shall be consistent with the provisions of the laws of the
State of Tennessee and of this Charter.
(c) No dividends shall be paid or declared or set apart on any
particular series of Preferred Stock in respect of any period unless accumulated
dividends shall be or shall have been paid, or declared and set apart for
payment, pro rata on all shares of Preferred Stock at the time outstanding of
each other series, so that the amount of dividends declared on such particular
series shall bear the same ratio to the amount declared on each such other
series as the dividend rate of such particular series shall bear to the dividend
rate of such other series.
(d) Unless and except to the extent otherwise required by law or
provided in the resolution or resolutions of the Board of Directors creating any
series of Preferred Stock pursuant to this ARTICLE SIXTH, the holders of the
Preferred Stock shall have no voting power with respect to any matter
whatsoever.
Page 2 of Union Planters Corporation Charter
<PAGE> 53
(e) Shares of Preferred Stock called, redeemed, converted, exchanged,
purchased, retired or surrendered to the Corporation, or which have been issued
and reacquired in any manner, shall, upon compliance with any applicable
provisions of the Tennessee Business Corporation Act, have the status of
authorized and unissued shares of Preferred Stock and may be reissued by the
Board of Directors as part of the series of which they were originally a part or
may be reclassified into and reissued as part of a new series or as a part of
any other series, all subject to the protective conditions or restrictions of
any outstanding series of Preferred Stock.
SERIES A PREFERRED STOCK
(f) Pursuant to the authority vested in the Board of Directors in
accordance with the provisions of this ARTICLE SIXTH of the Charter, the Board
of Directors does hereby create, authorize and provide for the issuance of
Series A Preferred Stock out of the class of 10,000,000 shares of preferred
stock, no par value (the "Preferred Stock"), having the voting powers,
designation, relative, participating, optional and other special rights,
preferences, and qualifications, limitations and restrictions thereof that are
set forth as follows:
(1) DESIGNATION AND AMOUNT. The shares of such series shall be
designated as Series A Preferred Stock ("Series A Preferred Stock") and the
number of shares constituting such series shall be 750,000. Such number of
shares may be adjusted by appropriate action of the Board of Directors.
(2) DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the prior and superior rights of the
holders of any shares of any other series of Preferred Stock or any other shares
of preferred stock of the Corporation ranking prior and superior to the shares
of Series A Preferred Stock with respect to dividends, each holder of one
one-hundredth (1/100) of a share (a "Unit") of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for that purpose, (i) dividends payable in cash on the
1st day of January, April, July and October in each year (each such date being a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of such Unit of Series A Preferred Stock,
in an amount per Unit (rounded to the nearest cent) equal to the greater of (x)
$.01 or (y) subject to the provision for adjustment hereinafter set forth, the
aggregate per share amount of all cash dividends declared on shares of the
common stock of the Corporation, par value $5.00 per share, (the "Common Stock")
since the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of a Unit of Series A Preferred Stock, and (ii) subject to the provision for
adjustment hereinafter set forth, quarterly distributions (payable in kind) on
each Quarterly Dividend Payment Date in an amount per Unit equal to the
aggregate per share amount of all non-cash dividends or other distributions
(other than a dividend payable in shares of Common Stock or a subdivision of the
outstanding share of Common Stock, by reclassification or otherwise) declared on
shares of Common Stock since the immediately preceding Quarterly Dividend
Payment Date, or with respect to the first Quarterly Dividend Payment Date,
since the first issuance of a Unit of Series A Preferred Stock. In the event
that the Corporation shall at any time after January 19, 1989 (the "Rights
Declaration Date") (i) declare or pay any dividend on outstanding shares of
Common Stock payable in shares of Common Stock, or (ii) subdivide outstanding
shares of Common Stock or (iii) combine outstanding shares of Common Stock into
a smaller number of shares, then in each such case the amount to which the
holder of a Unit of Series A Preferred Stock was entitled immediately prior to
such event pursuant to the preceding sentence shall be adjusted by multiplying
such amount of a fraction the numerator of which shall be the number of shares
of Common Stock that are outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or
distribution on Units of Series A Preferred Stock as provided in paragraph (a)
above immediately after it declares a dividend or distribution on the shares of
Common Stock (other than a dividend payable in shares of Common Stock);
provided, however that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend payment Date, a dividend
of $.01 per Unit on the Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and shall be
cumulative on each outstanding Unit of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issuance of such Unit
of Series A Preferred Stock, unless the date of issuance of such Unit is prior
to the record date for the First Quarterly Dividend Payment Date, in which case,
dividends on such Unit shall begin to accrue from the date of issuance of such
Unit, or unless the date of issuance is a Quarterly Dividend Payment Date or is
a date after the record date for the determination of holders of Units of Series
A Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on Units of
Series A Preferred Stock in an amount less than the aggregate amount of all such
dividends at the time accrued and payable on such Units shall be allocated pro
rata on a unit-by-unit basis amount all Units of Series A Preferred Stock at the
time outstanding. The Board of Directors may fix a record date for the
determination of holders of Units of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 30 days prior to the date fixed for the payment
thereof.
(3) VOTING RIGHTS. The holders of Units of Series A Preferred
Stock shall have the following voting rights.
(a) Subject to the provision for adjustment
hereinafter set forth, each Unit of Series A
Preferred Stock shall entitle the holder thereof to
one vote on all matters submitted to a vote of the
shareholders of the Corporation. In the event the
Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of
Common Stock or (iii) combine the outstanding shares
of Common Stock into a smaller number of shares, then
in each such case the number of votes per Unit to
which holders of Units of Series A Preferred Stock
Page 3 of Union Planters Corporation Charter
<PAGE> 54
were entitled immediately prior to such event shall
be adjusted by multiplying such number by a fraction,
the numerator of which shall be the number of shares
of Common Stock outstanding immediately after such
event and the denominator of which shall be the
number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law,
the holders of Units of Series A Preferred Stock and
the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a
vote of shareholders of the Corporation.
(c) Except as set forth herein or required by law,
holders of Units of Series A Preferred Stock shall
have no special voting rights and their consent shall
not be required (except to the extent they are
entitled to vote with holders of shares of Common
Stock as set forth herein) for the taking of any
corporate action.
(4) CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends
or distributions payable on Units of Series A
Preferred Stock as provided in paragraph 2 are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared,
on outstanding Units of Series A Preferred Stock
shall have been paid (or set aside for payment) in
full, the Corporation shall not:
(i) declare or pay dividends on, make any
other distributions or redeem or purchase or
otherwise acquire for consideration any
shares of stock ranking junior to the Series
A Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock
ranking on a parity as to dividends with the
Series A Preferred Stock, except for
dividends paid ratably on Units of Series A
Preferred Stock and shares of all such
parity stock on which dividends are payable
or in arrears in proportion to the total
amounts to which the holders of such Units
and all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any
stock ranking on a parity (either as to
dividends or upon liquidation, dissolution
or winding up) with the Series A Preferred
Stock, PROVIDED, HOWEVER, that the
Corporation may at any time redeem, purchase
or otherwise acquire shares of any such
parity stock in exchange for shares of any
stock ranking junior (both as to dividends
and upon liquidation, dissolution or winding
up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any Units of Series A
Preferred Stock, except in accordance with
a purchase offer made in writing or by
publication (as determined by the Board of
Directors) to all holders of such Units.
(b) The Corporation shall not permit any subsidiary
of the Corporation to purchase or otherwise acquire
for consideration any shares of stock of the
Corporation unless the Corporation could, under
paragraph (a) of this paragraph 4, purchase or
otherwise acquire such shares at such time and in
such manner.
(5) REACQUIRED SHARES. Any Units of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after
the acquisition thereof. All such Units shall, upon their
cancellation, become authorized but unissued Units of
Preferred Stock and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(6) LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of
shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless the
holders of Units of Series A Preferred Stock shall
have received, subject to adjustment as hereinafter
provided in paragraph (b), the greater of either (y)
$90.00 per Unit plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether
or not earned or declared, to the date of such
payment, or (z) the amount equal to the aggregate per
share amount to be distributed to holders of shares
of Common Stock, or (ii) to the holders of shares of
stock ranking on a parity upon liquidation,
dissolution or winding up with the Series A Preferred
Stock, unless simultaneously therewith distributions
are made ratably on Units of Series A Preferred Stock
and all other shares of such parity stock in
proportion to the total amounts to which the holders
of Units of Series A Preferred Stock are entitled
under Clause (i)(y) of this sentence and to which the
holders of such shares of such parity stock are
entitled, in each case upon such liquidation
dissolution or winding up.
Page 4 of Union Planters Corporation Charter
<PAGE> 55
(b) in the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any
dividend on outstanding shares of Common Stock
payable in shares of Common Stock, or (ii) subdivide
outstanding shares of Common Stock, or (iii) combine
outstanding shares of Common Stock into a smaller
number of shares, then in each such case the
aggregate amount to which holders of Units of Series
A Preferred Stock were entitled immediately prior to
such event pursuant to clause (i)(z) of paragraph (1)
of this paragraph 6 shall be adjusted by multiplying
such amount by a fraction the numerator of which
shall be the number of shares of Common Stock that
are outstanding immediately after such event and the
denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior
to such event.
(7) SHARE EXCHANGE, MERGER, ETC. In case the Corporation shall
enter into any share exchange, merger, combination or other
transaction in which the shares of Common Stock are exchanged
for or converted into other stock or securities, cash and/or
any other property, then in any such case Units of Series A
Preferred Stock shall at the same time be similarly exchanged
for or converted into an amount per Unit (subject to the
provision for adjustment hereinafter set forth) equal to the
aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or
for which each share of Common Stock is converted or
exchanged. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares of Common
Stock, or (ii) subdivide outstanding shares of Common Stock,
or (iii) combine outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth
in the immediately preceding sentence with respect to the
exchange or conversion of shares of Series A Preferred Stock
shall be adjusted by multiplying such amount by a fraction the
numerator of which shall be the number of shares of Common
Stock that are outstanding immediately after such event and
the denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(8) REDEMPTION. The Units of Series A Preferred Stock shall
not be redeemable at the option of the Corporation or any
holder thereof. Notwithstanding the foregoing sentence of this
Section, the Corporation may acquire Units of Series A
Preferred Stock in any other manner permitted by law and the
Charter or Bylaws of the Corporation.
(9) RANKING. The Units of Series A Preferred Stock shall rank
junior to all other series of the Preferred Stock and to any
other class of preferred stock that hereafter may be issued by
the Corporation as to the payment of dividends and the
distribution of assets, unless the terms of any such series or
class shall provide otherwise.
(10) AMENDMENT. The Charter, including without limitation the
provisions hereof, shall not hereafter be amended, either
directly or indirectly, or through merger or share exchange
with another corporation, in any manner that would alter or
change the powers, preferences or special rights of the Series
A Preferred Stock so as to affect the holders thereof
adversely without the affirmative vote of the holders of a
majority or more of the outstanding Units of Series A
Preferred Stock, voting separately as a class.
(11) FRACTIONAL SHARES. The Series A Preferred Stock may be
issued in Units or other fractions of a share, which Units or
fractions shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Preferred
Stock.
SERIES B PREFERRED STOCK
(g) Pursuant to the authority vested in the Board of Directors in
accordance with the provisions of this Article VI of the Charter, the
Board of Directors of Union Planters Corporation (the "Corporation")
does hereby create, authorize and provide for the issuance of a new
series of preferred stock out of the authorized class of 10,000,000
shares of preferred stock, no par value (the "Preferred Stock"), having
the voting powers, designations, relative participating, optional and
other special rights, preferences, qualifications, limitations and
restrictions thereof that are set forth as follows:
1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as Series B $8.00 Nonredeemable
Cumulative Convertible Preferred Stock (the "Series B
Preferred Stock") and the number of shares
constituting such series shall be 44,000. Such number
of shares may be adjusted by appropriate action of
this Board of Directors.
2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the prior and superior rights of the
holders of any shares of any other series of
Preferred Stock of the Corporation ranking prior and
superior to the shares of Series B Preferred Stock
with respect to dividends, the holders of the Series
B Preferred Stock, in preference to the holders of
the $5.00 par value common stock of the Corporation
(the "UPC Common Stock"), and any other capital stock
of the Corporation ("Capital Stock") ranking junior
to the Series B Preferred Stock as to the payment of
dividends, shall be entitled to receive as and if
declared by the Board of Directors out of funds
legally available for that purpose, cumulative cash
dividends at, but not exceeding, $8.00 per share per
annum and no more.
(b) Dividends upon shares of Series B Preferred Stock
shall be cumulative so that if in respect of any past
quarterly dividend period or periods, full dividends
accrued on the outstanding shares of Series B
Preferred
Page 5 of Union Planters Corporation Charter
<PAGE> 56
Stock shall not have been paid, the aggregate
deficiency shall be fully paid or declared or set
aside for payment before (i) any dividend shall be
declared and paid or set aside for payment on UPC
Common Stock, or any other Capital Stock ranking
junior to the Series B Preferred Stock as to the
payment of dividends, (ii) any other distribution of
assets shall be made with respect to UPC Common Stock
or any other Capital Stock ranking junior to the
Series B Preferred Stock as to the payment of
dividends, and (iii) the redemption or purchase of
any shares of Series B Preferred Stock, UPC Common
Stock, or any other Capital Stock ranking on a parity
with or junior to the Series B Preferred Stock as to
the payment of dividends by the Corporation.
(c) Cash dividends on the Series B Preferred Stock
shall commence to accrue and shall be cumulative from
the Effective Date of the Merger between Union
Planters - Steiner Acquisition Company and Steiner
Holdings pursuant to that Merger Agreement dated June
9, 1989 between UPC, Subsidiary, Steiner Bank, Arnold
Steiner and Mary Steiner (the "Merger Agreement");
and, otherwise, from the Quarterly Dividend Payment
Date on which cash dividends were paid on Series B
Preferred Stock (in respect of a dividend on Series B
Preferred Stock) next preceding the date of issuance
of such shares of Series B Preferred Stock.
(d) Cash dividends on shares of Series B Preferred
Stock shall be payable quarterly on the third Friday
of February, May, August and November (a "Quarterly
Dividend Payment Date") and will have the same record
date for the payment of dividends as the record date
for payment of dividends on UPC Common Stock, and, if
there is no record date for the payment of dividends
on UPC Common Stock, then the record date for the
payment of dividends of the Series B Preferred Stock
shall be that date which is 15 days prior to a given
Quarterly Dividend Payment Date.
3. NO PREEMPTIVE RIGHTS. No holders of Series B
Preferred Stock shall be entitled, as of right, to
purchase or subscribe for any part of the unissued
Series B Preferred Stock, UPC Common Stock, or
Capital Stock, or to purchase or subscribe for any
bonds, certificates of indebtedness, debentures, or
other securities convertible into or carrying
options, warrants or rights to purchase stock or
other securities of the Corporation, or to purchase
or subscribe for any stock or any securities of the
Corporation purchased by the Corporation or by its
nominee or nominees, or to have any other preemptive
rights now or hereafter defined by the laws of the
State of Tennessee; PROVIDED, HOWEVER, that this
section shall not be deemed to prohibit the exercise
by the holders of UPC Series B Preferred Stock of
Rights issued pursuant to the UPC Share Purchase
Rights Agreement.
4. LIQUIDATION. (a) In the event of the voluntary or
involuntary liquidation, dissolution or winding up of
the affairs of the Corporation, the holders of Series
B Preferred Stock shall be entitled to receive, after
payment or provision for payment of all debts, but
before any distribution of assets may be made to the
holders of UPC Common Stock, or any other Capital
Stock of the Corporation ranking junior to the Series
B Preferred Stock as to liquidation, out of assets of
the Corporation available for distributions to its
stockholders, $100 per share, plus, in each case,
accrued and unpaid dividends thereon to the date of
payment thereof. After such payment has been made in
full to the holders of the outstanding shares of
Series B Preferred Stock (or funds necessary for the
payment have been set aside in trust for the account
of such holders so as to be and continue to be
available therefor), the holders of Series B
Preferred Stock shall be entitled to no further
distribution, and the remaining assets of the
Corporation shall be divided and distributed among
the holders of UPC Common Stock (subject to any prior
rights of any holders of any other Capital Stock of
the Corporation entitled to participate with the UPC
Common Stock as to the distribution of assets) then
outstanding according to their respective shares. If
on liquidation, dissolution or winding up, the net
assets of the Corporation available for distribution
among the holders of Series B Preferred Stock are
insufficient to permit full payment to them, the
entire net assets of the Corporation so available for
distribution shall be distributed ratably among the
holders of Series B Preferred Stock and the holders
of any other Capital Stock ranking on a parity with
the Series B Preferred Stock as to liquidation and
distribution of assets. Nothing herein contained
shall be construed to prohibit the retirement of
Series B Preferred Stock by purchase, and neither the
purchase of Series B Preferred Stock, the
consolidation or merger of the Corporation, nor the
sale or transfer of all or substantially all of the
assets of the Corporation as an entirety shall be
deemed a "liquidation, dissolution or winding up of
the Corporation" within the meaning of this paragraph
4.
5. RIGHT TO VOTE. Except to the extent that the power or
right to vote is granted or required pursuant to the
Tennessee Business Corporation Act, as amended from
time to time, the Series B Preferred Stock shall have
no power or right to vote.
6. CONVERSION OF SERIES B PREFERRED STOCK. The holders
of shares of Series B Preferred Stock shall have the
right, at their option, any time after that date
which is five (5) years after the Effective Date of
the Merger, to convert such shares into shares of UPC
Common Stock on the following terms and conditions:
(a) Except as provided in subsection (c) of this
Section 6, each share of Series B Preferred Stock
shall be convertible into that number of shares of
UPC Common Stock determined by dividing (i) the
product of the multiplication of the number of Series
B Preferred Shares issued in the Merger by $100, by
(ii) $12.95, then
Page 6 of Union Planters Corporation Charter
<PAGE> 57
dividing that number by the number of Series B
Preferred Shares issued in the Merger (the
"Conversion Ratio").
(b) Except as provided in subsection (c) of this
Section 6, the estate of Arnold Steiner and the
trustees of the trusts which receive assets of the
Estate of Bernard S. Steiner, Jr. pursuant to the
provisions of the last will and testament of Bernard
S. Steiner, Jr., and which shall have received Series
B Preferred Stock pursuant to the Merger and such
last will and testament, shall have the right to
convert the shares of Series B Preferred Stock they
own in accordance with the Conversion Ratio within
five (5) years from the Effective Date of the Merger,
(i) as to the estate of Arnold Steiner, upon the
death of Arnold Steiner, and as to each such trust,
upon the death(s) of the oldest permissible income
beneficiary of that particular trust; (ii) should
there be a change in control (as defined in Section
2(a) of the Bank Holding Company Act of 1956, as
amended, 12 U.S.C. Section 1841(a) of UPC; and (iii)
should UPC issue any other preferred stock having
priority as to the payment of dividends or as to
liquidation preference over that of the Series B
Preferred Stock.
(c) If any Series B Preferred Stock shall be
converted into UPC Common Stock at a time when the
UPC Common Stock into which such Series B Preferred
Stock is convertible has attached or attributable
thereto Rights issued pursuant to the UPC Share
Purchase Rights Agreement, the surrender of such
Series B Preferred Stock shall effectively cancel all
Rights attached or attributable to the share(s) of
Series B Preferred Stock so converted.
(d) If at any time, or from time to time, the
Corporation shall (i) declare and pay, on or in
respect of, UPC Common Stock any dividend payable in
shares of UPC Common Stock, (ii) subdivide the
outstanding shares of UPC Common Stock into a greater
number of shares, or contract the number of
outstanding shares of Series B Preferred Stock by
combining such shares into a smaller number of
shares, or (iii) contract the number of outstanding
shares of UPC Common Stock by combining such shares
into a smaller number of shares, or subdivide the
outstanding shares of Series B Preferred Stock into a
greater number of shares of Series B Preferred Stock,
the Conversion Ratio shall be proportionately
adjusted as of such time.
(e) If the Corporation consolidates with or merges
into any corporation or reclassifies outstanding
shares of UPC Common Stock (other than by way of
subdivision or contraction of such shares) each share
of Series B Preferred Stock shall thereafter be
convertible into the number of shares of stock or
other securities or property of the Corporation, or
of the entity resulting from such consolidation or
merger, to which a holder of the number of shares of
UPC Common Stock deliverable upon conversion of such
share of Series B Preferred Stock would have been
entitled upon such consolidation, merger or reclas-
sification, had the holder of such share of Series B
Preferred Stock exercised his right of conversion and
had such shares been issued and outstanding and had
such holder been the holder of record of such UPC
Common Stock at the time of such consolidation,
merger or reclassification; and the Corporation shall
make lawful provision therefor as a part of such
consolidation, merger or reclassification.
(f) Whenever the Conversion Ratio is required to be
adjusted, as herein provided, the Corporation shall
promptly file with the transfer agent for the UPC
Common Stock and simultaneously provide to each
holder of record of Series B Preferred Stock a
statement signed by the President or a Vice President
or the Secretary or the Treasurer setting forth the
adjusted Conversion Ratio, determined as so provided.
Such statement shall set forth in reasonable detail
such facts as may be necessary to show the reason for
and the manner of computing such adjustment.
(g) On presentation and surrender to the Corporation
at any office or agency maintained for the transfer
of Series B Preferred Stock or the certificates of
Series B Preferred Stock so to be converted, duly
endorsed for transfer, the holder of such Series B
Preferred Stock shall be entitled, subject to the
limitations herein contained, to receive in exchange
therefor a certificate or certificates for fully paid
and nonassessable shares, and cash for fractional
shares of UPC Common Stock or other securities
pursuant to subsection (e) above, on the basis
aforesaid. The Series B Preferred Stock shall be
deemed to have been converted and the person
converting the same to have become the holder of
record of UPC Common Stock, for the purpose of
receiving dividends and for all other purposes
whatever as of the date when the certificate or
certificates for such Series B Preferred Stock are
surrendered to the Corporation as aforesaid. The
Corporation shall not be required to make any such
conversion, and no surrender of the Series B
Preferred Stock shall be effective for such purposes,
while the books for the transfer of either class of
stock are closed for any purpose, but the surrender
of such shares of Series B Preferred Stock for
conversion during any period while such books are
closed shall become effective for all purposes of
conversion immediately upon the reopening of such
books, as if the conversion had been made on the date
such shares of Series B Preferred Stock were
surrendered.
(h) The Corporation shall pay any and all taxes which
may be imposed upon it with respect to the issuance
and delivery of UPC Common Stock upon the conversion
of the Series B Preferred Stock as herein provided.
The Corporation shall not be required in any event to
pay any transfer or other taxes by reason of the
issuance of such UPC Common Stock in names other than
those in which the Series B Preferred Stock
surrendered
Page 7 of Union Planters Corporation Charter
<PAGE> 58
for conversion may stand, and no such conversion or
issuance of UPC Common Stock shall be made unless and
until the person requesting such issuance has paid to
the Corporation the amount of any such tax, or has
established to the satisfaction of the Corporation
and its transfer agent, if any, that such tax has
been paid or is not required. Upon any conversion of
Series B Preferred Stock as herein provided, no
adjustment or allowance shall be made for dividends
on the Series B Preferred Stock so converted, and all
rights to dividends, if any, shall cease and be
deemed satisfied; however, except as provided in the
next sentence hereof, nothing in this section shall
be deemed to relieve the Corporation from its
obligation to pay any dividends which shall have been
declared and shall be payable to holders of Series B
Preferred Stock of record as of a date prior to such
conversion even though the payment date for such
dividend is subsequent to the date of conversion.
7. RESERVATION OF UPC COMMON STOCK. The Corporation
shall, so long as any of the Series B Preferred Stock
is outstanding, reserve and keep available out of its
authorized and unissued UPC Common Stock, solely for
the purpose of effecting the conversion of the Series
B Preferred Stock, such number of shares of UPC
Common Stock as shall, from time to time, be
sufficient to effect the conversion of all shares of
the Series B Preferred Stock then outstanding. The
Corporation shall, from time to time, increase its
authorized UPC Common Stock and take such other
actions as may be necessary to permit the issuance
from time to time of the shares of the UPC Common
Stock, as fully paid and nonassessable shares, upon
the conversion of the Series B Preferred Stock as
herein provided.
8. DEFINITIONS. For purposes hereof:
(a) The term "outstanding", when used in reference to
shares of stock, shall mean issued shares, excluding
shares held by the Corporation or a subsidiary
thereof, and shares called for redemption, funds for
the redemption of which shall have been set aside by
the Corporation or deposited in trust;
(b) The amount of dividends "accrued" on any share of
Series B Preferred Stock as of any quarterly dividend
date shall be deemed to be the amount of any unpaid
dividends accumulated thereon to and including such
quarterly dividend date, whether or not earned or
declared, and the amount of dividends "accrued" on
any shares of Series B Preferred Stock as at any date
other than a quarterly dividend date shall be deemed
to be (i) the amount of any unpaid dividends
accumulated thereon to and including the last
preceding quarterly dividend date, whether or not
earned or declared, plus (ii) an amount calculated on
the basis of the annual dividend rate fixed for the
shares of Series B Preferred Stock (8%) for the
period after such last preceding quarterly dividend
date to and including the date as of which the
calculation is made, based on a 360-day year or 12
consecutive 30-day months.
9. REDEMPTION. The shares of Series B Preferred Stock
shall not be redeemable at the option of the
Corporation or any holder thereof. Notwithstanding
the foregoing sentence of this Section, the
Corporation may acquire Series B Preferred Stock in
any other manner permitted by law and its Charter or
Bylaws.
10. RANKING. The Series B Preferred Stock shall rank
superior to that of the Corporation's Series A
Preferred Stock as well as to all other series of the
Corporation's preferred stock, unless the designation
of rights and preferences for any other series of the
Corporation's preferred stock expressly provides
otherwise.
11. AMENDMENT. The Charter, including without limitations
the provisions hereof, shall not hereafter be
amended, either directly or indirectly, or through
merger or share exchange with another corporation, in
any manner that would alter or change the powers,
preferences or special rights of the Series B
Preferred Stock so as to affect the holders thereof
adversely without the affirmative vote of the holders
of a majority or more of the outstanding shares of
Series B Preferred Stock, voting separately as a
class; provided, however, that this paragraph shall
have no affect on the ability of the Corporation to
amend the Rights Agreement or redeem the UPC
Preferred Share Purchase Rights in accordance
therewith.
12. FRACTIONAL SHARES. The Series B Preferred Shares may
be issued in units or other fractions of a share,
which units or fractions shall entitle the holder, in
proportion to such holder's fractional shares, to
exercise such rights, receive dividends, and
participate in all distributions and derive the
benefit of all other rights of holders of Series B
Preferred Stock.
SERIES C PREFERRED STOCK
(h) Pursuant to the authority vested in the Board of Directors of Union
Planters Corporation (the "Corporation") by the provisions of this
Article Sixth of the Charter and by the provisions of the Tennessee
Business Corporation Act, the Board of Directors of the Corporation
does hereby create, authorize and provide for the issuance of a new
series of preferred stock out of the Corporation's authorized class of
10,000,000 shares of no par value preferred stock (the "Preferred
Stock"), having the designation, relative participating, optional and
other special rights, preferences, qualifications, limitations and
restrictions provided hereafter:
Page 8 of Union Planters Corporation Charter
<PAGE> 59
1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as 10 3/8% Increasing Rate,
Redeemable, Cumulative Preferred Stock, Series C (the
"Series C Preferred Stock") and the number of shares
of Preferred Stock constituting such Series C
Preferred Stock shall be 690,000. Such number of
shares of Series C Preferred Stock may be adjusted
hereafter by appropriate action of the Board of
Directors. The Series C Preferred Stock shall have a
stated value (the "Stated Value") of $25.00 per
share.
2. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of shares of Series C Preferred
Stock, in preference to the holders of the $5.00 par
value common stock of the Corporation (the "UPC
Common Stock") shall be entitled to receive when and
as declared by the Board of Directors, out of funds
legally available for the purpose, cumulative cash
dividends payable quarterly at the rate per share set
forth in paragraph 2(c) below, on the fifteenth day
(or, if such fifteenth day is not a Business Day, on
the next Business Day) of February, May, August and
November in each year (a "Quarterly Dividend Payment
Date"), in respect of the Quarterly Dividend Period
next preceding such fifteenth day, and no other
dividend or dividends. Such dividends shall be
payable to holders of the Series C Preferred Stock on
such date as is not more than 30 nor less than 10
days prior to the particular Quarterly Dividend
Payment Date. As used herein, a "Quarterly Dividend
Period" means a period of three months ending on the
last day of January, April, July or October. Subject
to the provisions of paragraph (c) of Section Sixth
of the Charter, dividends on account of arrears for
any past Quarterly Dividend Period(s) may be declared
and paid at any time, without reference to any
regular Quarterly Dividend Payment Date to holders of
record on such date not exceeding 30 or less than 10
days preceding the payment date thereof as may be
fixed by the Board of Directors. The amount of
dividend per share payable for any Quarterly Dividend
Period less than a full Quarterly Dividend Period
shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days
elapsed in the period for which payable.
(b) Preferred dividends upon shares of Series C
Preferred Stock shall commence to accrue and be
cumulative from (but not including) the day upon
which the initial issuance of shares of Series C
Preferred Stock occurs.
(c) For each Quarterly Dividend Period ending on or
before October 31, 1994, preferred dividends payable
with respect to each such Quarterly Dividend Period
shall be $0.648438 per share. For each Quarterly
Dividend Period ending after November 1, 1994 and on
or before October 31, 1995, preferred dividends
payable with respect to each such Quarterly Dividend
Period shall be $0.679688 per share. For each
Quarterly Dividend Period ending after November 1,
1995, and on or before October 31, 1996, preferred
dividends payable with respect to each such Quarterly
Dividend Period shall be $0.710938 per share. For
each Quarterly Dividend Period ending after November
1, 1996, preferred dividends payable with respect to
such Quarterly Dividend Periods shall be $0.742188
per share. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.
(d) For purposes hereof, "Business Day" shall mean
any day upon which commercial banks in the City of
Memphis, Tennessee, are required to be open for the
transaction of their general banking business.
3. NO PREEMPTIVE RIGHTS. Holders of shares of Series C
Preferred Stock shall not be entitled, as of right,
to purchase or subscribe for any part of the unissued
Series C Preferred Stock, any UPC Common Stock, or
any other capital stock of the Corporation, or to
purchase or subscribe for any bonds, certificates of
indebtedness, debentures, or other securities
convertible into or carrying options, warrants or
rights to purchase any stock or other securities of
the Corporation, or to purchase or subscribe for any
stock or any securities of the Corporation purchased
by the Corporation or by its nominee or nominees, or
to have any other preemptive rights now or hereafter
defined by the laws of the State of Tennessee.
4. LIQUIDATION. In the event of the voluntary or
involuntary liquidation, dissolution or winding up of
the affairs of the Corporation, the holders of Series
C Preferred Stock shall be entitled to receive, after
payment or provision for payment of all debts, but
before any distribution of assets may be made to the
holders of UPC Common Stock or any other stock of the
Corporation ranking junior to the Series C Preferred
Stock as to the distribution of assets on
liquidation, dissolution or winding up of the
Corporation, out of assets of the Corporation
available for distributions to its shareholders,
$25.00 per share (the "Liquidation Value"), plus, in
each case, accrued and unpaid dividends thereon from
(but not including) the day of initial issuance to
the date of payment thereof. After such payment has
been made in full to the holders of the outstanding
shares of Series C Preferred Stock (or funds
necessary for the payment have been set aside in
trust for the account of such holders so as to be and
continue to be available therefor), the holders of
Series C Preferred Stock shall be entitled to no
further distributions, and the remaining assets of
the Corporation shall be divided and distributed
among the holders of UPC Common Stock (subject to any
prior rights of any holders of any other capital
stock of the Corporation entitled to participate with
the UPC Common Stock as to the distribution of
assets) then outstanding according to their
respective rights as shareholders. If, upon any
liquidation, dissolution or winding up of the
Corporation, the net assets of the Corporation, or
proceeds thereof available for distribution among the
holders of Series C Preferred Stock should be
insufficient to permit payment in full of the
Page 9 of Union Planters Corporation Charter
<PAGE> 60
preferential amount aforesaid and liquidating
payments on any other Preferred Stock ranking, as to
liquidation, dissolution or winding up, on a parity
with the Series C Preferred Stock, then such assets,
or the proceeds thereof, shall be distributed among
the holders of Series C Preferred Stock and the
holders of any such other Preferred Stock ratably in
accordance with the respective amounts which would be
payable on such shares of Series C Preferred Stock
and on any such other Preferred Stock if all amounts
payable thereon were paid in full. Neither the
consolidation or merger of the Corporation with or
into any other corporation or corporations, nor a
reorganization of the Corporation alone, nor the sale
or transfer by the Corporation of all or
substantially all of its assets shall be deemed a
"liquidation, dissolution or winding up of the
Corporation" within the meaning of this paragraph 4.
5. RIGHT TO VOTE.
(a) Except as hereinafter provided for and as
otherwise from time to time required by law, the
Series C Preferred Stock shall have no voting rights.
(b) So long as any shares of the Series C Preferred
Stock remain outstanding, the consents of the holders
of at least two-thirds (2/3ds) of the shares of
Series C Preferred Stock outstanding at the time
(voting separately as a class together with all other
series of Preferred Stock of the Corporation ranking
on a parity with the Series C Preferred Stock either
as to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up
and upon which like voting rights have been conferred
and are exercisable) given in person or by proxy,
either in writing or at any special or annual meeting
called for the purpose, shall be necessary to permit,
effect or validate any one or more of the following:
(i) the authorization, creation or issuance of a new
class or series of shares of capital stock having
rights, preferences or privileges prior to the Series
C Preferred Stock, or any increase in the number of
authorized shares of any class or series having
rights, preferences or privileges prior to the Series
C Preferred Stock; or
(ii) the amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the
provisions of the Corporation's Charter which would
materially and adversely affect any right,
preference, privilege or voting power of the Series C
Preferred Stock or of the holders thereof; PROVIDED,
HOWEVER, that any increase in the amount of
authorized UPC Common Stock or Preferred Stock or the
authorization, creation or issuance of any other
series of UPC Common Stock or Preferred Stock, in
each case ranking on a parity with or junior to the
Series C Preferred Stock with respect to the payment
of dividends and the distribution of assets upon
liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
(c) The foregoing voting provisions shall not apply
if, at or prior to the time when the act with respect
to which such vote would otherwise be required shall
be effected, all outstanding shares of Series C
Preferred Stock shall have been redeemed or called
for redemption and funds shall have been deposited in
trust in an amount sufficient to effect such
redemption.
6. REDEMPTION.
(a) The shares of Series C Preferred Stock shall be
redeemable, in whole or in part, only at the option
of the Corporation by resolution of its Board of
Directors and with the prior written consent of the
Board of Governors of the Federal Reserve System, or
of the appropriate Federal Reserve Bank acting under
delegated authority, or their successors, at any time
and from time to time on or after October 31, 1994 at
$25.00 per share, plus all dividends accrued and
unpaid on such Series C Preferred Stock from (but
not including) the day of issuance up to the day
fixed for redemption. Notwithstanding the foregoing
sentence of this Section, the Corporation may acquire
Series C Preferred Stock in any other manner
permitted by law and its Charter or Bylaws.
(b) In the event that less than the entire amount of
the Series C Preferred Stock outstanding is to be
redeemed at any one time, the shares to be redeemed
shall be selected by lot or pro rata (as nearly as
may be) or by any other method determined by the
Board of Directors of the Corporation in its sole
discretion to be equitable. Notice of any redemption
shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior
to the redemption date, to each holder of record of
the shares selected for redemption at such holders'
respective addresses as the same shall appear on the
stock register of the Corporation. Each such notice
shall state: (1) the redemption date; (2) the number
of shares of Series C Preferred Stock to be redeemed
and, if less than all the shares held by such holder
are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the redemption price
and the manner in which the redemption price is to be
paid and delivered; (4) the place or places where
certificates for such shares are to be surrendered
for payment of the redemption price; and (5) that
dividends on the shares to be redeemed will cease to
accrue on such redemption date. No failure to mail
such notice or any defect therein or in the mailing
thereof shall affect the validity of the proceedings
for redemption. Any notice mailed in the
Page 10 of Union Planters Corporation Charter
<PAGE> 61
manner herein provided shall be conclusively presumed
to have been duly given whether or not the holder
receives the notice. Upon such redemption date, or
upon such earlier date as the Board of Directors
shall designate for payment of the redemption price
(unless the Corporation shall default in the payment
of the redemption price as set forth in such notice),
the holders of shares of Series C Preferred Stock
selected for redemption and to whom notice has been
duly given shall cease to be shareholders with
respect to such shares of Series C Preferred Stock
and shall have no interest in or claim against the
Corporation by virtue thereof and shall have no
dividend, voting or other rights with respect to such
shares except the right to receive the moneys payable
upon such redemption from the Corporation or
otherwise, without interest thereon, upon surrender
(and endorsement, if required by the Corporation) of
the certificates, and the shares evidenced and
represented thereby shall no longer be deemed to be
outstanding. The Corporation's obligation to provide
funds for redemption shall be deemed fulfilled if, on
or before the redemption date, the Corporation shall
deposit with a bank or trust company (which may be an
affiliate of the Corporation), having an office or
agency in Memphis, Tennessee and having a capital and
surplus of at least $50,000,000, or with any other
such bank or trust company located in the continental
United States as may be designated from time to time
by the Corporation, funds necessary for such
redemption, in trust, with irrevocable instructions
that such funds be applied to the redemption of the
shares of Series C Preferred Stock so called for
redemption. Any interest accrued on such funds shall
be paid to the Corporation from time to time. Any
funds so deposited and unclaimed at the end of six
years from such redemption date shall be repaid or
released to the Corporation, after which the holder
or holders of such shares of Series C Preferred Stock
so called for redemption shall look only to the
Corporation for payment of the redemption price. Upon
redemption of Series C Preferred Stock in the manner
set out herein, or upon the purchase of Series C
Preferred Stock by the Corporation, the Series C
Preferred Stock so acquired by the Corporation shall
be retired and canceled and shall be restored to the
status of authorized but unissued shares of Preferred
Stock, without designation as to series, and may
thereafter be issued, but not as shares of Series C
Preferred Stock.
7. RANKING.
(a) Any class or series of stock of the Corporation
shall be deemed to rank:
(i) "prior to" the Series C Preferred Stock
if the holders of such class or series shall
be entitled to the receipt of dividends or
of amounts distributable upon liquidation,
dissolution or winding up, as the case may
be, in preference or priority to the holders
of Series C Preferred Stock; and
(ii) "on a parity with" the Series C
Preferred Stock if the holders of such class
or series of stock and the holders of the
Series C Preferred Stock shall be entitled
to the receipt of dividends or of amounts
distributable upon liquidation, dissolution
or winding up, as the case may be, in
proportion to their respective dividend
rates or liquidation prices, without
preference or priority one over the other
whether or not the dividend rates, dividend
payment dates or redemption or liquidation
prices per share of such other class or
series of stock are different from those of
the Series C Preferred Stock.
(b) The Series C Preferred Stock shall rank on a
parity with both the Corporation's Series B Preferred
Stock and the Series A Preferred Stock, if and when
such Series A Preferred Stock should be issued.
8. DEBT OBLIGATIONS. The Corporation, at any time and
from time to time, may authorize the issue of debt
obligations, whether or not subordinated, without the
approval of the shareholders.
9. CONVERSION OR EXCHANGE. The holders of the Series C
Preferred Stock shall not have any rights herein to
convert such shares into, or exchange such shares
for, shares of any other class or classes or any
other series of any class or classes of capital stock
(or any other equity or debt security) of the
Corporation.
SERIES D PREFERRED STOCK
(i) Pursuant to the authority vested in the Board of Directors of Union
Planters Corporation (the "Corporation") by the provisions of this
Article Sixth of its Charter and by the provisions of the Tennessee
Business Corporation Act, the Board of Directors of the Corporation
does hereby create, authorize and provide for the issuance of a new
series of preferred stock out of the Corporation's authorized class of
10,000,000 shares of preferred stock having no par value (the
"Preferred Stock"), having the designation, relative participating,
optional and other special rights, preferences, qualifications,
limitations and restrictions provided hereafter:
1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as the: 9.5% REDEEMABLE,
CUMULATIVE, CONVERTIBLE, PREFERRED STOCK, SERIES D
(the "Series D Preferred Stock") and the number of
shares of Preferred Stock constituting such Series D
Preferred Stock shall be 253,659. Such number of
shares of Series D Preferred Stock may be adjusted
hereafter by appropriate action of the Board of
Directors. The Series D Preferred Stock shall have a
stated value of $20.50 per share (the "Stated
Value").
Page 11 of Union Planters Corporation Charter
<PAGE> 62
2. DIVIDENDS AND DISTRIBUTIONS. (a) The holders of
shares of Series D Preferred Stock, in preference to
the holders of the $5.00 par value common stock of
the Corporation (the "UPC Common Stock") shall be
entitled to receive when, as and if declared by the
Board of Directors, out of funds legally available
for the purpose, cumulative cash dividends payable
quarterly at the annual rate of 9.5% of the Stated
Value thereof on the fifteenth day (or, if such
fifteenth day should not be a Business Day, on the
next Business Day) of February, May, August and
November in each year (a "Quarterly Dividend Payment
Date"), in respect of the Quarterly Dividend Period
next preceding such fifteenth day, and no other
dividend or dividends. Such dividends shall be
payable to holders of record of the Series D
Preferred Stock on such date as may be fixed by the
Board of Directors which date shall not be more than
30 nor less than 10 days prior to the applicable
Quarterly Dividend Payment Date. As used herein, a
"Quarterly Dividend Period" means a period of three
calendar months ending on the last day of January,
April, July and October. Subject to the provisions of
paragraph (c) of Article Sixth of the Charter,
dividends on account of arrears for any past
Quarterly Dividend Period(s) may be declared and paid
at any time designated by the Board of Directors,
without reference to any regular Quarterly Dividend
Payment Date, to holders of record on such date as
may be fixed by the Board of Directors, which date
shall not be more than 30 nor less than 10 days
preceding the designated payment date. The amount of
dividend per share payable for any Quarterly Dividend
Period less than a full Quarterly Dividend Period
shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days
elapsed in the period with respect to which it is
payable.
(b) Preferred dividends upon shares of Series D
Preferred Stock shall commence to accrue and be
cumulative from the day upon which the original
issuance of shares of Series D Preferred Stock shall
occur which shall be deemed to be the effective date
of the merger of Southeastern Bancshares, Inc. with
and into Union Planters - SBI Acquisition Company,
both of which are Tennessee corporations.
(c) No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment
or payments which may be in arrears.
(d) For purposes hereof, a "Business Day" shall mean
any day on which commercial banks in the City of
Memphis, Tennessee, are required to be open for the
transaction of their general banking businesses.
3. NO PREEMPTIVE RIGHTS. The holders of shares of Series
D Preferred Stock shall not be entitled, as of right,
to purchase or subscribe for any part of the unissued
Series D Preferred Stock, any UPC Common Stock, or
any other capital stock of the Corporation, or to
purchase or subscribe for any bonds, certificates of
indebtedness, debentures, or other securities
convertible into, or carrying options, warrants or
rights to purchase, any stock or other securities of
the Corporation, or to purchase or subscribe for any
stock or any securities of the Corporation purchased
by the Corporation or by its nominee or nominees, or
to have any other preemptive rights now or hereafter
defined by the laws of the State of Tennessee.
4. LIQUIDATION. In the event of the voluntary or
involuntary liquidation, dissolution or winding up of
the affairs of the Corporation, the holders of Series
D Preferred Stock shall be entitled to receive, after
payment or provision for payment of all debts but
before any distribution of assets may be made to the
holders of UPC Common Stock or any other stock of the
Corporation ranking junior to the Series D Preferred
Stock as to the distribution of assets on
liquidation, dissolution or winding up of the
Corporation, out of assets of the Corporation
available for distributions to its shareholders,
$20.50 per share (the "Liquidation Value"), plus, in
each case, accrued and unpaid dividends thereon from
(but not including) the day of original issuance to
the date of payment thereof. After such payment has
been made in full to the holders of the outstanding
shares of Series D Preferred Stock (or funds
necessary for such payment have been set aside in
trust for the account of such holders so as to be and
to continue to be available therefor), the holders of
Series D Preferred Stock shall be entitled to no
further distributions, and the remaining assets of
the Corporation shall be divided and distributed
among the holders of UPC Common Stock (subject to any
senior rights of any holders of any other capital
stock of the Corporation entitled to participate with
the UPC Common Stock as to the distribution of
assets) then outstanding according to their
respective rights as shareholders. If, upon any
liquidation, dissolution or winding up of the
Corporation, the net assets of the Corporation, or
proceeds thereof available for distribution among the
holders of Series D Preferred Stock should be
insufficient to permit payment in full of the
preferential amount aforesaid and liquidating
payments on any other Preferred Stock ranking, as to
liquidation, dissolution or winding up, on a parity
with the Series D Preferred Stock, then such assets,
or the proceeds thereof, shall be distributed among
the holders of Series D Preferred Stock and the
holders of any such other Preferred Stock ranking on
a parity with the Series D Preferred Stock ratably in
accordance with the respective amounts which would be
payable on such shares of Series D Preferred Stock
and on any such other Preferred Stock ranking on a
parity with the Series D Preferred Stock if all
amounts payable thereon were paid in full. Neither
the consolidation or merger of the Corporation with
or into any other corporation or corporations, nor a
reorganization of the Corporation alone, nor the sale
or transfer by the Corporation of all or
substantially all of its assets shall be deemed a
"liquidation, dissolution or winding up of the
Corporation" within the meaning of this paragraph 4.
5. RIGHT OF HOLDERS OF SERIES D SHARES TO VOTE.
Page 12 of Union Planters Corporation Charter
<PAGE> 63
(a) Except as hereinafter provided for and as
otherwise from time to time required by law, the
Series D Preferred Stock shall have no voting rights
except for those which may be required by the laws of
the State of Tennessee.
(b) So long as any shares of Series D Preferred Stock
remain outstanding, the consents of the holders of at
least two-thirds (2/3ds) of the shares of Series D
Preferred Stock outstanding at the time (voting
separately as a class together with all other series
of Preferred Stock of the Corporation ranking on a
parity with the Series D Preferred Stock either as to
dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which
like voting rights have been conferred and are
exercisable) given in person or by proxy, either in
writing or at any special or annual meeting called
for the purpose, shall be necessary to permit, effect
or validate any one or more of the following actions:
(i) the authorization, creation or issuance
of a new class or series of shares of
capital stock of the Corporation having
rights, preferences or privileges senior to
the Series D Preferred Stock, or any
increase in the number of authorized shares
of any class or series having rights,
preferences or privileges senior to the
Series D Preferred Stock; or
(ii) the amendment, alteration or repeal,
whether by merger, consolidation or
otherwise, of any of the provisions of the
Corporation's Charter which would materially
and adversely affect any right, preference,
privilege or voting power of the Series D
Preferred Stock or of the holders thereof;
PROVIDED, HOWEVER, that any increase in the
amount of authorized UPC Common Stock or
Preferred Stock or the authorization,
creation or issuance of any other series of
UPC Common Stock or Preferred Stock, in each
case ranking on a parity with, or junior to
the Series D Preferred Stock with respect to
the payment of dividends and the
distribution of assets upon liquidation,
dissolution or winding up, shall not be
deemed to "materially and adversely affect"
such rights, preferences, privileges or
voting powers of the Series D Preferred
Stock.
(c) The foregoing voting provisions shall not apply
if, at or prior to the time when the act with respect
to which such vote would otherwise be required shall
be effected (i) all outstanding shares of Series D
Preferred Stock shall have been redeemed or called
for redemption and (ii) funds shall have been
deposited in trust in an amount sufficient to effect
such redemption as provided herein.
6. REDEMPTION.
(a) The shares of Series D Preferred Stock shall be
redeemable, in whole or in part, only at the option
of the Corporation by resolution of its Board of
Directors but only with the prior consent of the
Board of Governors of the Federal Reserve System, or
of the appropriate Federal Reserve Bank acting under
delegated authority, or their successors, at any time
and from time to time on or after the third anniver-
sary of the Effective Time of the Merger of SBI with
and into Union Planters - SBI Acquisition Company at
Twenty and 50/100 Dollars ($20.50) per share (the
"Redemption Price"), plus all dividends accrued and
unpaid on such Series D Preferred Stock from (but not
including) the day of original issuance up to the
Redemption Date (as defined below). Notwithstanding
the foregoing sentence of this Section, the
Corporation may acquire Series D Preferred Stock in
any other lawful manner permitted by its Charter or
Bylaws.
(b) In the event that less than the entire amount of
Series D Preferred Stock outstanding is to be
redeemed at any one time, the shares to be redeemed
shall be selected by lot or pro rata (as nearly as
may be) or by any other method determined by the
Board of Directors of the Corporation in its sole
discretion to be equitable.
(c) Notice of any redemption, whether whole or
partial, shall be given by United States first class
mail, postage prepaid, deposited in the mail not less
than 30 nor more than 60 days prior to the Redemption
Date, addressed to each holder of record of the
shares selected for redemption at such holders'
respective addresses as the same shall appear on the
stock register of the Corporation. Each such notice
shall state: (1) the date designated by the Board of
Directors as the "Redemption Date"; (2) the number of
shares of Series D Preferred Stock to be redeemed
and, if less than all the shares held by such holder
are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the Redemption Price
and the manner in which the Redemption Price is to be
paid and delivered; (4) the place or places where
certificates representing and evidencing such shares
are to be surrendered for payment of the Redemption
Price; and (5) that dividends on the shares to be
redeemed will cease to accrue on such Redemption
Date. No failure to mail such notice or any defect
therein or in the mailing thereof shall affect the
validity of the proceedings for redemption. Any
notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether
or not the holder receives the notice. On the
Redemption Date, or on such earlier date as the Board
of Directors shall designate for payment of the
Redemption Price (unless the Corporation shall
default in the payment of the Redemption Price as set
forth in such notice), the holders of shares of
Series D Preferred Stock selected for redemption and
to whom notice has been duly given shall cease to be
shareholders with respect to such shares of Series D
Preferred Stock and shall have no interest in, or
claim against the Corporation by virtue thereof and
shall have no dividend, voting or other rights with
respect to such
Page 13 of Union Planters Corporation Charter
<PAGE> 64
shares except the right to receive the moneys payable
upon such redemption from the Corporation or
otherwise, without interest thereon, upon surrender
(and proper endorsement, if required by the
Corporation) of the certificates, and the shares
represented thereby shall no longer be deemed to be
outstanding. The Corporation's obligation to provide
funds for redemption shall be deemed fulfilled if, on
or before the Redemption Date, the Corporation shall
have deposited with a bank or trust company (which
may be an affiliate of the Corporation), having an
office or agency in Memphis, Tennessee, having a
capital and surplus of at least $50,000,000, or with
any other such bank or trust company located in the
continental United States as may be designated from
time to time by the Corporation, funds necessary for
such redemption, in trust, with irrevocable
instructions that such funds be applied to the
redemption of the shares of Series D Preferred Stock
so called for redemption. Any interest accrued on
such funds shall be paid to the Corporation from time
to time. Any funds so deposited and unclaimed at the
end of six years from such Redemption Date shall be
repaid or released to the Corporation, after which
the holder or holders of such shares of Series D
Preferred Stock so called for redemption shall look
only to the Corporation for payment of the Redemption
Price. Upon redemption of Series D Preferred Stock in
the manner set out herein, or upon the purchase of
Series D Preferred Stock by the Corporation, the
Series D Preferred Stock so acquired by the
Corporation shall be retired and canceled and shall
be restored to the status of authorized but unissued
shares of Preferred Stock, without designation as to
series, and may thereafter be issued, but not as
shares of Series D Preferred Stock.
7. RANKING.
(a) Any class or series of stock of the Corporation
shall be deemed to rank:
(i) "senior to" the Series D Preferred Stock
if the holders of such class or series shall
be entitled to the receipt of dividends or
of amounts distributable upon liquidation,
dissolution or winding up, as the case may
be, in preference or priority to the holders
of Series D Preferred Stock; and
(ii) "on a parity with" the Series D
Preferred Stock if the holders of such class
or series of stock and the holders of the
Series D Preferred Stock shall be entitled
to the receipt of dividends or of amounts
distributable upon liquidation, dissolution
or winding up, as the case may be, in
proportion to their respective dividend
rates or liquidation prices, without
preference or priority one over the other
whether or not the dividend rates, dividend
payment dates or redemption or liquidation
prices per share of such other class or
series of stock are different from those of
the Series D Preferred Stock.
(b) The Series D Preferred Stock shall rank on a
parity with the Corporation's Series B Preferred
Stock, the Corporation's Series C Preferred Stock and
the Corporation's Series A Preferred Stock, if and
when shares of such Series A Preferred Stock should
be issued.
8. CONVERSION OF SERIES D PREFERRED STOCK. The
registered holders of shares of Series D Preferred
Stock shall have the right, at their option, to
convert such shares into shares of UPC Common Stock
(and, upon the occurrence of a certain type of
merger, into other assets) on the following terms and
conditions:
(a) The registered holders of the Series D Preferred
Stock shall have the right at any time after the date
of its original issuance but prior to the Redemption
Date designated in the notice of redemption given to
such holders in accordance with the provisions of
Section 6, to convert each share of the Corporation's
Series D Preferred Stock registered in the name of
such holders into one (1) share of the Corporation's
Common Stock having a par value of $5.00 per share.
The Series D Preferred Stock shall not be convertible
into any other class or classes or any other series
of any class or classes of capital stock (or any
other equity or debt security) of the Corporation.
(b) On presentation and surrender to the Corporation
at any office or agency maintained for the transfer
of the Series D Preferred Stock (the "Transfer
Agent") of the certificates representing and
evidencing Series D Preferred Stock so to be
converted, duly endorsed for conversion, the holder
of such Series D Preferred Stock shall be entitled,
subject to the limitations herein contained, to
receive in exchange therefor a certificate or
certificates for fully paid and nonassessable shares,
and cash for fractional shares (if any) of UPC Common
Stock or other securities pursuant to subsection (d)
below on the basis set forth. The Series D Preferred
Stock shall be deemed to have been converted and the
person converting the same shall be deemed to have
become the holder of record of UPC Common Stock, for
the purpose of receiving dividends and for all other
purposes whatsoever as of the date when the
certificate or certificates representing and
evidencing such Series D Preferred Stock shall have
been surrendered to the Transfer Agent as aforesaid.
The holder of Series D Preferred Stock shall be
responsible for selection of the method of delivery
to the Transfer Agent of any share certificates
intended to be surrendered for conversion and the
Corporation shall have no risk or liability for the
loss or late delivery of certificates for conversion.
Properly endorsed certificates must be physically
received by the Transfer Agent no later than the
close of business on the Business Day next preceding
the designated Redemption Date in order for the
conversion to become effective. The
Page 14 of Union Planters Corporation Charter
<PAGE> 65
Corporation shall not be required to make any such
conversion, and no surrender of the Series D
Preferred Stock shall be effective for such purposes,
while the books for the transfer of either class of
stock are closed for any purpose, but the surrender
of such shares of Series D Preferred Stock for
conversion during any period while such books are
closed shall become effective for all purposes of
conversion immediately upon the reopening of such
books, as if the conversion had been made on the date
such shares of Series D Preferred Stock were
surrendered.
(c) If at any time, or from time to time, the
Corporation should (i) declare and pay on, or in
respect of, the UPC Common Stock any dividend payable
in shares of UPC Common Stock; or (ii) subdivide the
outstanding shares of UPC Common Stock into a greater
number of shares, or contract the number of
outstanding shares of Series D Preferred Stock by
combining such shares into a smaller number of
shares; or (iii) contract the number of outstanding
shares of the UPC Common Stock by combining such
shares into a smaller number of shares, or (iv)
subdivide the outstanding shares of Series D
Preferred Stock into a greater number of shares of
Series D Preferred Stock, the Conversion Ratio shall
be proportionately adjusted as of such time.
(d) If the Corporation should consolidate with, or
merge into any corporation or reclassify outstanding
shares of UPC Common Stock (other than by way of
subdivision or contraction of such shares), each
share of Series D Preferred Stock shall thereafter be
convertible into the number of shares of stock or
other securities or property of the Corporation, or
of the entity resulting from such consolidation or
merger, to which a holder of the number of shares of
UPC Common Stock deliverable upon conversion of such
share of Series D Preferred Stock would have been
entitled upon such consolidation, merger or
reclassification, had the holder of such share of
Series D Preferred Stock exercised his right of
conversion and had such shares been issued and
outstanding and had such holder been the holder of
record of such UPC Common Stock at the time of such
consolidation, merger or reclassification and the
Corporation shall make lawful provision therefor as a
part of such consolidation, merger or
reclassification.
(e) Whenever the conversion ratio or the type of
consideration other than UPC Common Stock receivable
by the holder upon conversion of the Series D
Preferred Stock is required to be adjusted, as herein
provided, the Corporation shall promptly file with
the transfer agent for the UPC Common Stock and
simultaneously provide to each holder of record of
Series D Preferred Stock a statement signed by the
President or a Vice President or the Secretary or the
Treasurer setting forth the adjusted conversion ratio
and, if applicable, a description of the
consideration receivable upon consummation,
determined as so provided. Such statement shall set
forth in reasonable detail such facts as may be
necessary to show the reason for and the manner of
computing such adjustments.
(f) The Corporation shall pay any and all taxes which
may be imposed upon it with respect to the issuance
and delivery of UPC Common Stock upon the conversion
of the Series D Preferred Stock as herein provided.
The Corporation shall not be required in any event to
pay any transfer or other taxes by reason of the
issuance of such UPC Common Stock in names other than
those in which the Series D Preferred Stock
surrendered for conversion may stand, and no such
conversion or issuance of UPC Common Stock shall be
made unless and until the person requesting such
issuance has paid to the Corporation the amount of
any such tax, or has established to the satisfaction
of the Corporation and its transfer agent, if any,
that such tax has been paid or is not required. Upon
any conversion of Series D Preferred Stock as herein
provided, no adjustment or allowance shall be made
for dividends on the Series D Preferred Stock so
converted, and all rights to dividends, if any, shall
cease and be deemed satisfied; PROVIDED, HOWEVER,
that nothing in this section shall be deemed to
relieve the Corporation from its obligation to pay
any dividends which shall have been declared and
shall be payable to holders of Series D Preferred
Stock of record as of a date prior to such conversion
even though the payment date for such dividend may be
subsequent to the date of conversion.
(g) If any shares of Series D Preferred Stock should
be converted into UPC Common Stock at a time when the
UPC Common Stock into which such Series D Preferred
Stock is convertible has attached or attributable
thereto Rights issued pursuant to the UPC Share
Purchase Rights Agreement, the surrender of such
Series D Preferred Stock shall effectively cancel all
Rights attached or attributable to the share(s) of
Series D Preferred Stock so converted.
9. RESERVATION OF UPC COMMON STOCK. The Corporation
shall, so long as any of the Series D Preferred Stock
shall remain outstanding, reserve and keep available
out of its authorized and unissued UPC Common Stock,
solely for the purpose of effecting the conversion of
the Series D Preferred Stock, such number of shares
of UPC Common Stock as shall, from time to time, be
sufficient to effect the conversion of all shares of
the Series D Preferred Stock then outstanding. The
Corporation shall, from time to time, increase its
authorized UPC Common Stock and take such other
actions as may be necessary to permit the issuance
from time to time of the shares of the UPC Common
Stock, as fully paid and nonassessable shares, upon
the conversion of the Series D Preferred Stock in the
manner herein provided.
10. DEBT OBLIGATIONS. The Corporation, at any time and
from time to time, may authorize the issuance of debt
obligations, whether or not subordinated, without the
approval of any of its shareholders.
Page 15 of Union Planters Corporation Charter
<PAGE> 66
11. DEFINITIONS. For purposes of subparagraph (i) of
Article Sixth of the Charter:
(a) The term "outstanding", when used in reference to
shares of stock, shall mean shares which are
authorized and issued, excluding shares held by the
Corporation or by a subsidiary of the Corporation
(other than in a fiduciary capacity), and excluding
shares called for redemption, funds for the
redemption of which shall have been set aside by the
Corporation or deposited in trust in the manner
provided herein;
(b) The amount of dividends "accrued" on any share of
Series D Preferred Stock as of the last day of the
applicable Quarterly Dividend Period (the "Quarterly
Dividend Date") shall be deemed to be the amount of
any unpaid dividends accumulated thereon to and
including such Quarterly Dividend Date, whether or
not earned or declared, and the amount of dividends
"accrued" on any shares of Series D Preferred Stock
as at any date other than a Quarterly Dividend Date
shall be deemed to be (i) the amount of any unpaid
dividends accumulated thereon to and including the
last preceding Quarterly Dividend Date, whether or
not earned or declared, plus (ii) an amount
calculated on the basis of the annual dividend rate
fixed for the shares of Series D Preferred Stock
(9.5%) for the period subsequent to such last
preceding Quarterly Dividend Date to and including
the date as of which the calculation is made, based
on a 360-day year of 12 consecutive 30-day months and
the actual number of days elapsed in the latter
period.
SERIES E PREFERRED STOCK
(a) Pursuant to the authority vested in the Board of Directors of
Union Planters Corporation (the "Corporation") by the
provisions of this Article Sixth of its Charter and by the
provisions of the Tennessee Business Corporation Act, the
Board of Directors of the Corporation does hereby create,
authorize and provide for the issuance of a new series of
preferred stock out of the Corporation's authorized class of
10,000,000 shares of preferred stock having no par value (the
"Preferred Stock"), having the designation, relative
participating, optional and other special rights, preferences,
qualifications, limitations and restrictions provided
hereafter:
1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as the: 8% CUMULATIVE,
CONVERTIBLE, PREFERRED STOCK, SERIES E (the "Series E
Preferred Stock") and the number of shares of
Preferred Stock constituting such Series E Preferred
Stock shall be 4,500,000. Such number of shares of
Series E Preferred Stock may be adjusted hereafter by
appropriate action of the Board of Directors. The
Series E Preferred Stock shall have a stated value of
$25.00 per share (the "Stated Value").
2. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of shares of Series E Preferred
Stock, in preference to the holders of the $5.00 par
value common stock of the Corporation (the "UPC
Common Stock") shall be entitled to receive when, as
and if declared by the Board of Directors, out of
funds legally available for the purpose, cumulative
cash dividends payable quarterly at the annual rate
of 8% of the Stated Value thereof on the fifteenth
day (or, if such fifteenth day should not be a
Business Day, on the next Business Day) of February,
May, August and November in each year (a "Quarterly
Dividend Payment Date"), in respect of the Quarterly
Dividend Period next preceding such fifteenth day,
and no other dividend or dividends. Such dividends
shall be payable to holders of record of the Series E
Preferred Stock on such date as may be fixed by the
Board of Directors which date shall not be more than
30 nor less than 10 days prior to the applicable
Quarterly Dividend Payment Date. As used herein, a
"Quarterly Dividend Period" means a period of three
calendar months ending on the last day of January,
April, July and October. Subject to the provisions of
paragraph (c) of Article Sixth of the Charter,
dividends on account of arrears for any past
Quarterly Dividend Period(s) may be declared and paid
at any time designated by the Board of Directors,
without reference to any regular Quarterly Dividend
Payment Date, to holders of record on such date as
may be fixed by the Board of Directors, which date
shall not be more than 30 nor less than 10 days
preceding the designated payment date. The amount of
dividend per share payable for any Quarterly Dividend
Period less than a full Quarterly Dividend Period
shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days
elapsed in the period with respect to which it is
payable.
(b) Preferred dividends upon shares of Series E
Preferred Stock shall commence to accrue and be
cumulative from the day upon which the original
issuance of shares of Series E Preferred Stock shall
occur.
(c) No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment
or payments which may be in arrears.
(d) For purposes hereof, a "Business Day" shall mean
any day on which commercial banks in the City of
Memphis, Tennessee, are required to be open for the
transaction of their general banking businesses.
3. NO PREEMPTIVE RIGHTS. The holders of shares of Series
E Preferred Stock shall not be entitled, as of right,
to purchase or subscribe for any part of the unissued
Series E Preferred Stock, any UPC Common Stock,
Page 16 of Union Planters Corporation Charter
<PAGE> 67
or any other capital stock of the Corporation, or to
purchase or subscribe for any bonds, certificates of
indebtedness, debentures, or other securities
convertible into, or carrying options, warrants or
rights to purchase, any stock or other securities of
the Corporation, or to purchase or subscribe for any
stock or any securities of the Corporation purchased
by the Corporation or by its nominee or nominees, or
to have any other preemptive rights now or hereafter
defined by the laws of the State of Tennessee.
4. LIQUIDATION. In the event of the voluntary or
involuntary liquidation, dissolution or winding up of
the affairs of the Corporation, the holders of Series
E Preferred Stock shall be entitled to receive, after
payment or provision for payment of all debts but
before any distribution of assets may be made to the
holders of UPC Common Stock or any other stock of the
Corporation ranking junior to the Series E Preferred
Stock as to the distribution of assets on
liquidation, dissolution or winding up of the
Corporation, out of assets of the Corporation
available for distributions to its shareholders,
$25.00 per share (the "Liquidation Value"), plus, in
each case, accrued and unpaid dividends thereon from
(but not including) the day of original issuance to
the date of payment thereof. After such payment has
been made in full to the holders of the outstanding
shares of Series E Preferred Stock (or funds
necessary for such payment have been set aside in
trust for the account of such holders so as to be and
to continue to be available therefor), the holders of
Series E Preferred Stock shall be entitled to no
further distributions, and the remaining assets of
the Corporation shall be divided and distributed
among the holders of UPC Common Stock (subject to any
senior rights of any holders of any other capital
stock of the Corporation entitled to participate with
the UPC Common Stock as to the distribution of
assets) then outstanding according to their
respective rights as shareholders. If, upon any
liquidation, dissolution or winding up of the
Corporation, the net assets of the Corporation, or
proceeds thereof available for distribution among the
holders of Series E Preferred Stock should be
insufficient to permit payment in full of the
preferential amount aforesaid and liquidating
payments on any other Preferred Stock ranking, as to
liquidation, dissolution or winding up, on a parity
with the Series E Preferred Stock, then such assets,
or the proceeds thereof, shall be distributed among
the holders of Series E Preferred Stock and the
holders of any such other Preferred Stock ranking on
a parity with the Series E Preferred Stock ratably in
accordance with the respective amounts which would be
payable on such shares of Series E Preferred Stock
and on any such other Preferred Stock ranking on a
parity with the Series E Preferred Stock if all
amounts payable thereon were paid in full. Neither
the consolidation or merger of the Corporation with
or into any other corporation or corporations, nor a
reorganization of the Corporation alone, nor the sale
or transfer by the Corporation of all or
substantially all of its assets shall be deemed a
"liquidation, dissolution or winding up of the
Corporation" within the meaning of this paragraph 4.
5. RIGHT OF HOLDERS OF SERIES E SHARES TO VOTE.
(a) Except as hereinafter provided for and as
otherwise from time to time required by law, the
Series E Preferred Stock shall have no voting rights
except for those which may be required by the laws of
the State of Tennessee.
(b) So long as any shares of Series E Preferred Stock
remain outstanding, the consents of the holders of at
least two-thirds (2/3ds) of the shares of Series E
Preferred Stock outstanding at the time (voting
separately as a class together with all other series
of Preferred Stock of the Corporation ranking on a
parity with the Series E Preferred Stock either as to
dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which
like voting rights have been conferred and are
exercisable) given in person or by proxy, either in
writing or at any special or annual meeting called
for the purpose, shall be necessary to permit, effect
or validate any one or more of the following actions:
(i) the authorization, creation or issuance
of a new class or series of shares of
capital stock of the Corporation having
rights, preferences or privileges senior to
the Series E Preferred Stock, or any
increase in the number of authorized shares
of any class or series having rights,
preferences or privileges senior to the
Series E Preferred Stock; or
(ii) the amendment, alteration or repeal,
whether by merger, consolidation or
otherwise, of any of the provisions of the
Corporation's Charter which would materially
and adversely affect any right, preference,
privilege or voting power of the Series E
Preferred Stock or of the holders thereof;
PROVIDED, HOWEVER, that any increase in the
amount of authorized UPC Common Stock or
Preferred Stock or the authorization,
creation or issuance of any other series of
UPC Common Stock or Preferred Stock, in each
case ranking on a parity with, or junior to
the Series E Preferred Stock with respect to
the payment of dividends and the
distribution of assets upon liquidation,
dissolution or winding up, shall not be
deemed to "materially and adversely affect"
such rights, preferences, privileges or
voting powers of the Series E Preferred
Stock.
(c) The foregoing voting provisions shall not apply
if, at or prior to the time when the act with respect
to which such vote would otherwise be required shall
be effected (i) all outstanding shares of Series E
Preferred Stock shall have been redeemed or called
for redemption and (ii) funds shall have been
deposited in trust in an amount sufficient to effect
such redemption as provided herein.
Page 17 of Union Planters Corporation Charter
<PAGE> 68
6. REDEMPTION.
(a) The shares of Series E Preferred Stock shall be
redeemable, in whole or in part, only at the option
of the Corporation by resolution of its Board of
Directors but only with the prior consent of the
Board of Governors of the Federal Reserve System, or
of the appropriate Federal Reserve Bank acting under
delegated authority, or their successors, at any time
and from time to time on or after March 31, 1997, at
a price "Redemption Price" of $25.00 per share, plus
all dividends accrued and unpaid on such Series E
Preferred Stock from (but not including) the day of
original issuance up to the Redemption Date (as
defined below). Notwithstanding the foregoing
sentence of this Section, the Corporation may acquire
Series E Preferred Stock in any other lawful manner
permitted by its Charter or Bylaws.
(b) In the event that less than the entire amount of
Series E Preferred Stock outstanding is to be
redeemed at any one time, the shares to be redeemed
shall be selected by lot or pro rata (as nearly as
may be) or by any other method determined by the
Board of Directors of the Corporation in its sole
discretion to be equitable.
(c) Notice of any redemption, whether whole or
partial, shall be given by United States first class
mail, postage prepaid, deposited in the mail not less
than 30 nor more than 60 days prior to the Redemption
Date, addressed to each holder of record of the
shares selected for redemption at such holders'
respective addresses as the same shall appear on the
stock register of the Corporation. Each such notice
shall state: (1) the date designated by the Board of
Directors as the "Redemption Date"; (2) the number of
shares of Series E Preferred Stock to be redeemed
and, if less than all the shares held by such holder
are to be redeemed, the number of such shares to be
redeemed from such holder; (3) the Redemption Price
and the manner in which the Redemption Price is to be
paid and delivered; (4) the place or places where
certificates representing and evidencing such shares
are to be surrendered for payment of the Redemption
Price; and (5) that dividends on the shares to be
redeemed will cease to accrue on such Redemption
Date. No failure to mail such notice or any defect
therein or in the mailing thereof shall affect the
validity of the proceedings for redemption. Any
notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether
or not the holder receives the notice. On the
Redemption Date, or on such earlier date as the Board
of Directors shall designate for payment of the
Redemption Price (unless the Corporation shall
default in the payment of the Redemption Price as set
forth in such notice), the holders of shares of
Series E Preferred Stock selected for redemption and
to whom notice has been duly given shall cease to be
shareholders with respect to such shares of Series E
Preferred Stock and shall have no interest in, or
claim against the Corporation by virtue thereof and
shall have no dividend, voting or other rights with
respect to such shares except the right to receive
the moneys payable upon such redemption from the
Corporation or otherwise, without interest thereon,
upon surrender (and proper endorsement, if required
by the Corporation) of the certificates, and the
shares represented thereby shall no longer be deemed
to be outstanding. The Corporation's obligation to
provide funds for redemption shall be deemed
fulfilled if, on or before the Redemption Date, the
Corporation shall have deposited with a bank or trust
company (which may be an affiliate of the
Corporation), having an office or agency in Memphis,
Tennessee, having a capital and surplus of at least
$50,000,000, or with any other such bank or trust
company located in the continental United States as
may be designated from time to time by the
Corporation, funds necessary for such redemption, in
trust, with irrevocable instructions that such funds
be applied to the redemption of the shares of Series
E Preferred Stock so called for redemption. Any
interest accrued on such funds shall be paid to the
Corporation from time to time. Any funds so deposited
and unclaimed at the end of six years from such
Redemption Date shall be repaid or released to the
Corporation, after which the holder or holders of
such shares of Series E Preferred Stock so called for
redemption shall look only to the Corporation for
payment of the Redemption Price. Upon redemption of
Series E Preferred Stock in the manner set out
herein, or upon the purchase of Series E Preferred
Stock by the Corporation, the Series E Preferred
Stock so acquired by the Corporation shall be retired
and canceled and shall be restored to the status of
authorized but unissued shares of Preferred Stock,
without designation as to series, and may thereafter
be issued, but not as shares of Series E Preferred
Stock.
7. RANKING.
(a) Any class or series of stock of the Corporation
shall be deemed to rank:
(i) "senior to" the Series E Preferred Stock
if the holders of such class or series shall
be entitled to the receipt of dividends or
of amounts distributable upon liquidation,
dissolution or winding up, as the case may
be, in preference or priority to the holders
of Series E Preferred Stock; and
(ii) "on a parity with" the Series E
Preferred Stock if the holders of such class
or series of stock and the holders of the
Series E Preferred Stock shall be entitled
to the receipt of dividends or of amounts
distributable upon liquidation, dissolution
or winding up, as the case may be, in
proportion to their respective dividend
rates or liquidation prices, without
preference or priority one over the other
whether or not the dividend rates, dividend
payment dates or redemption or liquidation
prices
Page 18 of Union Planters Corporation Charter
<PAGE> 69
per share of such other class or series of
stock are different from those of the Series
E Preferred Stock
(b) The Series E Preferred Stock shall rank on a
parity with the Corporation's Series B Preferred
Stock, the Corporation's Series C Preferred Stock,
the Corporation's Series D Preferred Stock and the
Corporation's Series A Preferred Stock, if and when
shares of such Series A Preferred Stock should be
issued.
8. CONVERSION OF SERIES E PREFERRED STOCK. The
registered holders of shares of Series E Preferred
Stock shall have the right, at their option, to
convert such shares into shares of UPC Common Stock
(and, upon the occurrence of a certain type of
merger, into other assets) on the following terms and
conditions:
(a) The registered holders of the Series E Preferred
Stock shall have the right at any time after the date
of its original issuance but prior to the Redemption
Date designated in the notice of redemption given to
such holders in accordance with the provisions of
Section 6, to convert each share of the Corporation's
Series E Preferred Stock registered in the name of
such holders into 1.25 shares of the Corporation's
Common Stock having a par value of $5.00 per share.
The Series E Preferred Stock shall not be convertible
into any other class or classes or any other series
of any class or classes of capital stock (or any
other equity or debt security) of the Corporation.
(b) On presentation and surrender to the Corporation
at any office or agency maintained for the transfer
of the Series E Preferred Stock (the "Transfer
Agent") of the certificates representing and
evidencing Series E Preferred Stock so to be
converted, duly endorsed for conversion, the holder
of such Series E Preferred Stock shall be entitled,
subject to the limitations herein contained, to
receive in exchange therefor a certificate or
certificates for fully paid and nonassessable shares,
and cash for fractional shares (if any) of UPC Common
Stock or other securities pursuant to subsection (d)
below on the basis set forth. The Series E Preferred
Stock shall be deemed to have been converted and the
person converting the same shall be deemed to have
become the holder of record of UPC Common Stock, for
the purpose of receiving dividends and for all other
purposes whatsoever as of the date when the
certificate or certificates representing and
evidencing such Series E Preferred Stock shall have
been surrendered to the Transfer Agent as aforesaid.
The holder of Series E Preferred Stock shall be
responsible for selection of the method of delivery
to the Transfer Agent of any share certificates
intended to be surrendered for conversion and the
Corporation shall have no risk or liability for the
loss or late delivery of certificates for conversion.
Properly endorsed certificates must be physically
received by the Transfer Agent no later than the
close of business on the Business Day next preceding
the designated Redemption Date in order for the
conversion to become effective. The Corporation shall
not be required to make any such conversion, and no
surrender of the Series E Preferred Stock shall be
effective for such purposes, while the books for the
transfer of either class of stock are closed for any
purpose, but the surrender of such shares of Series E
Preferred Stock for conversion during any period
while such books are closed shall become effective
for all purposes of conversion immediately upon the
reopening of such books, as if the conversion had
been made on the date such shares of Series E
Preferred Stock were surrendered.
(c) If at any time, or from time to time, the
Corporation should (i) declare and pay on, or in
respect of, the UPC Common Stock any dividend payable
in shares of UPC Common Stock; or (ii) subdivide the
outstanding shares of UPC Common Stock into a greater
number of shares, or contract the number of
outstanding shares of Series E Preferred Stock by
combining such shares into a smaller number of
shares; or (iii) contract the number of outstanding
shares of the UPC Common Stock by combining such
shares into a smaller number of shares, or (iv)
subdivide the outstanding shares of Series E
Preferred Stock into a greater number of shares of
Series E Preferred Stock, the Conversion Ratio shall
be proportionately adjusted as of such time.
(d) If the Corporation should consolidate with, or
merge into any corporation or reclassify outstanding
shares of UPC Common Stock (other than by way of
subdivision or contraction of such shares), each
share of Series E Preferred Stock shall thereafter be
convertible into the number of shares of stock or
other securities or property of the Corporation, or
of the entity resulting from such consolidation or
merger, to which a holder of the number of shares of
UPC Common Stock deliverable upon conversion of such
share of Series E Preferred Stock would have been
entitled upon such consolidation, merger or
reclassification, had the holder of such share of
Series E Preferred Stock exercised his right of
conversion and had such shares been issued and
outstanding and had such holder been the holder of
record of such UPC Common Stock at the time of such
consolidation, merger or reclassification and the
Corporation shall make lawful provision therefor as a
part of such consolidation, merger or
reclassification.
(e) Whenever the conversion ratio or the type of
consideration other than UPC Common Stock receivable
by the holder upon conversion of the Series E
Preferred Stock is required to be adjusted, as herein
provided, the Corporation shall promptly file with
the transfer agent for the UPC Common Stock and
simultaneously provide to each holder of record of
Series E Preferred Stock a statement signed by the
President or a Vice President or the Secretary or the
Treasurer setting forth the adjusted conversion ratio
and, if applicable, a description of the
consideration receivable upon consummation,
determined as so provided. Such statement
Page 19 of Union Planters Corporation Charter
<PAGE> 70
shall set forth in reasonable detail such facts as
may be necessary to show the reason for and the
manner of computing such adjustments.
(f) The Corporation shall pay any and all taxes which
may be imposed upon it with respect to the issuance
and delivery of UPC Common Stock upon the conversion
of the Series E Preferred Stock as herein provided.
The Corporation shall not be required in any event to
pay any transfer or other taxes by reason of the
issuance of such UPC Common Stock in names other than
those in which the Series E Preferred Stock
surrendered for conversion may stand, and no such
conversion or issuance of UPC Common Stock shall be
made unless and until the person requesting such
issuance has paid to the Corporation the amount of
any such tax, or has established to the satisfaction
of the Corporation and its transfer agent, if any,
that such tax has been paid or is not required. Upon
any conversion of Series E Preferred Stock as herein
provided, no adjustment or allowance shall be made
for dividends on the Series E Preferred Stock so
converted, and all rights to dividends, if any, shall
cease and be deemed satisfied; PROVIDED, HOWEVER,
that nothing in this section shall be deemed to
relieve the Corporation from its obligation to pay
any dividends which shall have been declared and
shall be payable to holders of Series E Preferred
Stock of record as of a date prior to such conversion
even though the payment date for such dividend may be
subsequent to the date of conversion.
(g) If any shares of Series E Preferred Stock should
be converted into UPC Common Stock at a time when the
UPC Common Stock into which such Series E Preferred
Stock is convertible has attached or attributable
thereto Rights issued pursuant to the UPC Share
Purchase Rights Agreement, the surrender of such
Series E Preferred Stock shall effectively cancel all
Rights attached or attributable to the share(s) of
Series E Preferred Stock so converted.
9. RESERVATION OF UPC COMMON STOCK. The Corporation
shall, so long as any of the Series E Preferred Stock
shall remain outstanding, reserve and keep available
out of its authorized and unissued UPC Common Stock,
solely for the purpose of effecting the conversion of
the Series E Preferred Stock, such number of shares
of UPC Common Stock as shall, from time to time, be
sufficient to effect the conversion of all shares of
the Series E Preferred Stock then outstanding. The
Corporation shall, from time to time, increase its
authorized UPC Common Stock and take such other
actions as may be necessary to permit the issuance
from time to time of the shares of the UPC Common
Stock, as fully paid and nonassessable shares, upon
the conversion of the Series E Preferred Stock in the
manner herein provided.
10. DEBT OBLIGATIONS. The Corporation, at any time and
from time to time, may authorize the issuance of debt
obligations, whether or not subordinated, without the
approval of any of its shareholders.
11. DEFINITIONS. For purposes of subparagraph (j) of
Article Sixth of the Charter:
(a) The term "outstanding", when used in reference to
shares of stock, shall mean shares which are
authorized and issued, excluding shares held by the
Corporation or by a subsidiary of the Corporation
(other than in a fiduciary capacity), and excluding
shares called for redemption, funds for the
redemption of which shall have been set aside by the
Corporation or deposited in trust in the manner
provided herein;
(b) The amount of dividends "accrued" on any share of
Series E Preferred Stock as of the last day of the
applicable Quarterly Dividend Period (the "Quarterly
Dividend Date") shall be deemed to be the amount of
any unpaid dividends accumulated thereon to and
including such Quarterly Dividend Date, whether or
not earned or declared, and the amount of dividends
"accrued" on any shares of Series E Preferred Stock
as at any date other than a Quarterly Dividend Date
shall be deemed to be (i) the amount of any unpaid
dividends accumulated thereon to and including the
last preceding Quarterly Dividend Date, whether or
not earned or declared, plus (ii) an amount
calculated on the basis of the annual dividend rate
fixed for the shares of Series E Preferred Stock (8%)
for the period subsequent to such last preceding
Quarterly Dividend Date to and including the date as
of which the calculation is made, based on a 360-day
year of 12 consecutive 30-day months and the actual
number of days elapsed in the latter period.
SERIES F PREFERRED STOCK
(f) Pursuant to the authority vested in the Board of Directors in
accordance with the provisions of this ARTICLE SIXTH of the Charter,
the Board of Directors does hereby create, authorize and provide for
the issuance of Series F Preferred Stock out of the class of 10,000,000
shares of preferred stock, no par value (the "Preferred Stock"), having
the voting powers, designation, relative, participating, optional and
other special rights, preferences, and qualifications, limitations and
restrictions thereof that are set forth as follows:
1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as Series F Preferred Stock
("SERIES F PREFERRED STOCK") and the number of shares
constituting such series shall be 300,000. Such
number of shares may be adjusted by appropriate
action of the Board of Directors.
2. DIVIDENDS AND DISTRIBUTIONS.
Page 20 of Union Planters Corporation Charter
<PAGE> 71
(a) Subject to the prior and superior rights of the
holders of any shares of any other series of
Preferred Stock or any other shares of preferred
stock of the Corporation ranking prior and superior
to the shares of Series F Preferred Stock with
respect to dividends, each holder of one
ten-thousandth (1/10,000) of a share (a "Unit") of
Series F Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for that
purpose, (i) dividends payable in cash on the 1st day
of January, April, July and October in each year
(each such date being a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of such Unit of
Series F Preferred Stock, in an amount per Unit
(rounded to the nearest cent) equal to the greater of
(x) $.01 or (y) subject to the provision for
adjustment hereinafter set forth, the aggregate per
share amount of all cash dividends declared on shares
of the common stock of the Corporation, par value
$5.00 per share, (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of a
Unit of Series F Preferred Stock, and (ii) subject to
the provision for adjustment hereinafter set forth,
quarterly distributions (payable in kind) on each
Quarterly Dividend Payment Date in an amount per Unit
equal to the aggregate per share amount of all
non-cash dividends or other distributions (other than
a dividend payable in shares of Common Stock or a
subdivision of the outstanding share of Common Stock,
by reclassification or otherwise) declared on shares
of Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or with respect to
the first Quarterly Dividend Payment Date, since the
first issuance of a Unit of Series F Preferred Stock.
In the event that the Corporation shall at any time
after January 19, 1999 (the "Rights Declaration
Date") (i) declare or pay any dividend on outstanding
shares of Common Stock payable in shares of Common
Stock, or (ii) subdivide outstanding shares of Common
Stock or (iii) combine outstanding shares of Common
Stock into a smaller number of shares, then in each
such case the amount to which the holder of a Unit of
Series F Preferred Stock was entitled immediately
prior to such event pursuant to the preceding
sentence shall be adjusted by multiplying such amount
of a fraction the numerator of which shall be the
number of shares of Common Stock that are outstanding
immediately after such event and the denominator of
which shall be the number of shares of Common Stock
that were outstanding immediately prior to such
event.
(b) The Corporation shall declare a dividend or
distribution on Units of Series F Preferred Stock as
provided in paragraph (a) above immediately after it
declares a dividend or distribution on the shares of
Common Stock (other than a dividend payable in shares
of Common Stock); provided, however that, in the
event no dividend or distribution shall have been
declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend payment Date, a
dividend of $.01 per Unit on the Series F Preferred
Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and shall be
cumulative on each outstanding Unit of Series F
Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issuance of such Unit
of Series F Preferred Stock, unless the date of
issuance of such Unit is prior to the record date for
the First Quarterly Dividend Payment Date, in which
case, dividends on such Unit shall begin to accrue
from the date of issuance of such Unit, or unless the
date of issuance is a Quarterly Dividend Payment Date
or is a date after the record date for the
determination of holders of Units of Series F
Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on Units of
Series F Preferred Stock in an amount less than the
aggregate amount of all such dividends at the time
accrued and payable on such Units shall be allocated
pro rata on a unit-by-unit basis amount all Units of
Series F Preferred Stock at the time outstanding. The
Board of Directors may fix a record date for the
determination of holders of Units of Series F
Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to
the date fixed for the payment thereof.
3. VOTING RIGHTS. The holders of Units of Series F
Preferred Stock shall have the following voting
rights.
(a) Subject to the provision for adjustment
hereinafter set forth, each Unit of Series F
Preferred Stock shall entitle the holder thereof to
one vote on all matters submitted to a vote of the
shareholders of the Corporation. In the event the
Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of
Common Stock or (iii) combine the outstanding shares
of Common Stock into a smaller number of shares, then
in each such case the number of votes per Unit to
which holders of Units of Series F Preferred Stock
were entitled immediately prior to such event shall
be adjusted by multiplying such number by a fraction,
the numerator of which shall be the number of shares
of Common Stock outstanding immediately after such
event and the denominator of which shall be the
number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein or by law,
the holders of Units of Series F Preferred Stock and
the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a
vote of shareholders of the Corporation.
Page 21 of Union Planters Corporation Charter
<PAGE> 72
(c) Except as set forth herein or required by law,
holders of Units of Series F Preferred Stock shall
have no special voting rights and their consent shall
not be required (except to the extent they are
entitled to vote with holders of shares of Common
Stock as set forth herein) for the taking of any
corporate action.
4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends
or distributions payable on Units of Series F
Preferred Stock as provided in paragraph 2 are in
arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared,
on outstanding Units of Series F Preferred Stock
shall have been paid (or set aside for payment) in
full, the Corporation shall not:
(i) declare or pay dividends on, make any
other distributions or redeem or purchase or
otherwise acquire for consideration any
shares of stock ranking junior to the Series
F Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock
ranking on a parity as to dividends with the
Series F Preferred Stock, except for
dividends paid ratably on Units of Series F
Preferred Stock and shares of all such
parity stock on which dividends are payable
or in arrears in proportion to the total
amounts to which the holders of such Units
and all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any
stock ranking on a parity (either as to
dividends or upon liquidation, dissolution
or winding up) with the Series F Preferred
Stock, provided, however, that the
Corporation may at any time redeem, purchase
or otherwise acquire shares of any such
parity stock in exchange for shares of any
stock ranking junior (both as to dividends
and upon liquidation, dissolution or winding
up) to the Series F Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any Units of Series F
Preferred Stock, except in accordance with a
purchase offer made in writing or by
publication (as determined by the Board of
Directors) to all holders of such Units.
(b) The Corporation shall not permit any subsidiary
of the Corporation to purchase or otherwise acquire
for consideration any shares of stock of the
Corporation unless the Corporation could, under
paragraph (a) of this paragraph 4, purchase or
otherwise acquire such shares at such time and in
such manner.
5. REACQUIRED SHARES. Any Units of Series F Preferred
Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof.
All such Units shall, upon their cancellation, become
authorized but unissued Units of Preferred Stock and
may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of
shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series F Preferred Stock unless the
holders of Units of Series F Preferred Stock shall
have received, subject to adjustment as hereinafter
provided in paragraph (b), the greater of either (y)
$180.00 per Unit plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether
or not earned or declared, to the date of such
payment, or (z) the amount equal to the aggregate per
share amount to be distributed to holders of shares
of Common Stock, or (ii) to the holders of shares of
stock ranking on a parity upon liquidation,
dissolution or winding up with the Series F Preferred
Stock, unless simultaneously therewith distributions
are made ratably on Units of Series F Preferred Stock
and all other shares of such parity stock in
proportion to the total amounts to which the holders
of Units of Series F Preferred Stock are entitled
under Clause (i)(y) of this sentence and to which the
holders of such shares of such parity stock are
entitled, in each case upon such liquidation
dissolution or winding up.
(b) in the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any
dividend on outstanding shares of Common Stock
payable in shares of Common Stock, or (ii) subdivide
outstanding shares of Common Stock, or (iii) combine
outstanding shares of Common Stock into a smaller
number of shares, then in each such case the
aggregate amount to which holders of Units of Series
F Preferred Stock were entitled immediately prior to
such event pursuant to clause (i)(z) of paragraph (1)
of this paragraph 6 shall be adjusted by multiplying
such amount by a fraction the numerator of which
shall be the number of shares of Common Stock that
are outstanding immediately after such event and the
denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior
to such event.
Page 22 of Union Planters Corporation Charter
<PAGE> 73
7. SHARE EXCHANGE, MERGER, ETC. In case the Corporation
shall enter into any share exchange, merger,
combination or other transaction in which the shares
of Common Stock are exchanged for or converted into
other stock or securities, cash and/or any other
property, then in any such case Units of Series F
Preferred Stock shall at the same time be similarly
exchanged for or converted into an amount per Unit
(subject to the provision for adjustment hereinafter
set forth) equal to the aggregate amount of stock,
securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which
each share of Common Stock is converted or exchanged.
In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend
on outstanding shares of Common Stock payable in
shares of Common Stock, or (ii) subdivide outstanding
shares of Common Stock, or (iii) combine outstanding
Common Stock into a smaller number of shares, then in
each such case the amount set forth in the
immediately preceding sentence with respect to the
exchange or conversion of shares of Series F
Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which shall be
the number of shares of Common Stock that are
outstanding immediately after such event and the
denominator of which shall be the number of shares of
Common Stock that were outstanding immediately prior
to such event.
8. REDEMPTION. The Units of Series F Preferred Stock
shall not be redeemable at the option of the
Corporation or any holder thereof. Notwithstanding
the foregoing sentence of this Section, the
Corporation may acquire Units of Series F Preferred
Stock in any other manner permitted by law and the
Charter or Bylaws of the Corporation.
9. RANKING. The Units of Series F Preferred Stock shall
rank junior to all other series of the Preferred
Stock and to any other class of preferred stock that
hereafter may be issued by the Corporation as to the
payment of dividends and the distribution of assets,
unless the terms of any such series or class shall
provide otherwise.
10. AMENDMENT. The Charter, including without limitation
the provisions hereof, shall not hereafter be
amended, either directly or indirectly, or through
merger or share exchange with another corporation, in
any manner that would alter or change the powers,
preferences or special rights of the Series F
Preferred Stock so as to affect the holders thereof
adversely without the affirmative vote of the holders
of a majority or more of the outstanding Units of
Series F Preferred Stock, voting separately as a
class.
11. FRACTIONAL SHARES. The Series F Preferred Stock may
be issued in Units or other fractions of a share,
which Units or fractions shall entitle the holder, in
proportion to such holder's fractional shares, to
exercise voting rights, receive dividends,
participate in distributions and to have the benefit
of all other rights of holders of Series F Preferred
Stock.
COMMON STOCK
(a) Shares of Common Stock may be issued at such time or times and for
such consideration or considerations (not less than the par value
thereof) as the Board of Directors may deem advisable subject to such
limitations as may be set forth in the laws of the State of Tennessee
or the Charter or the Bylaws of the Corporation.
(b) Except as provided by law or this Charter, each holder of Common
Stock shall have one vote in respect of each share of stock held by him
of record on the books of the Corporation on all matters voted upon by
the shareholders.
(c) Subject to the preferential dividend rights, if any, applicable to
shares of Preferred Stock and subject to applicable requirements, if
any, with respect to the setting aside of sums for purchase, retirement
or sinking funds for Preferred Stock, the holders of Common Stock shall
be entitled to receive, to the extent permitted by law, such dividends
as may be declared from time to time by the Board of Directors.
(d) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the Corporation,
after distribution in full of the preferential amounts, if any, to be
distributed to the holders of shares of Preferred Stock, holders of
Common Stock shall be entitled to receive all of the remaining assets
of the Corporation of whatever kind available for distribution to
stockholders ratably in proportion to the number of shares of Common
Stock held by them respectively. The Board of Directors may distribute
in kind to the holders of Common Stock such remaining assets of the
Corporation or may sell, transfer or otherwise dispose of all or any
part of such remaining assets to any other person, corporation, trust,
or other entity and receive payment therefor in cash, stock or
obligations of such other corporation, trust or entity, or any
combination thereof, and may sell all or any part of the consideration
so received and distribute any balance thereof in kind to holders of
Common Stock. Neither the merger or consolidation of the Corporation
into or with any other corporation, nor the merger of any other
corporation into it, nor any purchase or redemption of shares of stock
of the Corporation of any class, shall be deemed to be a dissolution,
liquidation or winding up of the Corporation for the purposes of this
paragraph.
(e) Such numbers of shares of Common Stock as may from time to time be
required for such purpose shall be reserved for issuance (i) upon
conversion of any shares of Preferred Stock or any other obligation of
the Corporation convertible into shares of Common Stock which is at the
time outstanding or issuable upon exercise of any options or warrants
at the time outstanding, and (ii) upon exercise of any options or
warrants at the time outstanding to purchase shares of Common Stock.
Page 23 of Union Planters Corporation Charter
<PAGE> 74
SEVENTH: MINIMUM CAPITAL TO COMMENCE BUSINESS:
The Corporation will not commence business until consideration of one thousand
dollars ($1,000) has been received for the issuance of shares.
EIGHTH: NO PREEMPTIVE RIGHTS:
Neither the holders of Common Stock, nor the holders of Preferred Stock nor the
holders of any securities convertible into, exchangeable for or carrying any
rights to subscribe to any class of capital stock of the Corporation shall, as
such holders, have any right to acquire, purchase or subscribe for any shares of
the Common Stock or Preferred Stock of the Corporation or any class of capital
stock or any securities convertible into, exchangeable for, or carrying any
rights to subscribe to, shares of Common Stock or any such other class of
capital stock of the Corporation, which it may hereafter issue or sell (whether
out of the number of shares now or hereafter authorized by this Charter, or out
of any shares of the Common Stock or other capital stock of the Corporation
acquired by it after the issuance thereof, or otherwise), other than such right,
if any, as the Board of Directors of the Corporation in its discretion may
determine.
NINTH: DIRECTORS:
The number of directors of the Corporation shall be such number, not less than
seven (7) nor more than twenty-five (25), as shall be provided from time to time
in the Bylaws, provided that no amendment to the Bylaws decreasing the number of
directors shall have the effect of shortening the term of any incumbent
director, and provided further that no action shall be taken by the directors
(whether through amendment of the Bylaws or otherwise) to increase the number of
directors as provided in the Bylaws from time to time unless at least sixty-six
and two-thirds percent (66-2/3%) of the directors then in office shall concur in
said action. Directors need not be shareholders of the Corporation nor need they
be residents of Tennessee.
The Board of Directors shall be divided into three classes of directors which
shall be designated Class I, Class II and Class III. Such classes shall be as
nearly equal in number as the then total number of directors constituting the
entire board shall permit, with the terms of office of all members of one class
expiring each year. Should the number of directors fixed by the Bylaws not be
equally divisible by three, the excess director or directors shall be assigned
to Classes III or II as follows: (i) if there shall be an excess of one
directorship over a number equally divisible by three, such extra directorship
shall be classified in Class III; and (ii) if there be an excess of two
directorships over a number equally divisible by three, one shall be classified
in Class II and the other in Class III. At the annual meeting of shareholders in
1981: directors of Class I shall be elected to hold office for a term expiring
at the next succeeding annual meeting; directors of Class II shall be elected to
hold office for a term expiring at the second succeeding annual meeting; and
directors of Class III shall be elected to hold office for a term expiring at
the third succeeding annual meeting. At each annual meeting of shareholders
after 1981, the successors to the members of the class of directors whose terms
shall then expire shall be elected to hold office for a term expiring at the
third succeeding annual meeting, except that the successor to any director who
shall have been elected by the directors to fill a vacancy whose term shall
expire at such meeting shall be elected by the shareholders for a term expiring
at the same time as the terms of other members of the same class. Any director
elected by the Board of Directors to fill a vacancy (whether or not such vacancy
shall have been created by an increase in the number of directors) shall serve
only until the next annual meeting of the shareholders. Notwithstanding the
foregoing, any director whose term shall expire at any annual meeting shall
continue to serve until such time as his successor shall have been duly elected
and shall have qualified unless his position on the Board shall have been
abolished by action taken to reduce the size of the Board prior to said meeting.
Should the number of members of the Corporation's Board as fixed by the Bylaws
be reduced by amendment thereof, the Board shall designate, by the name of the
incumbent(s), the position(s) to be abolished, the first being selected from
Class II should the number of members of that Class exceed the number of members
of Class I, the second being selected from Class III should the number of its
members exceed the number of members of Class I, and others, in sequence from
Classes I, II, III, I, II, III, etc. in that order. Should additional
directorships be created pursuant to amendment of the Bylaws, they shall be
allocated first to Class II and then to Class I as may be required to make equal
the number of directorships in each class. Should the number of directorships be
equal as among the three classes, newly created positions shall be assigned
first to Class III, then to Class II, then to Class I, etc.
Notwithstanding any other provisions of this Charter or the Bylaws (and
notwithstanding the fact that some lesser percentage may be specified by law,
the Charter or the Bylaws of this Corporation), the affirmative vote of the
holders of sixty-six and two-thirds percent (66 2/3%) or more of the outstanding
shares of capital stock of this Corporation entitled to vote generally in the
election of directors (considered for this purpose as one class) shall be
required (a) to amend, alter, change or repeal this ARTICLE NINTH of the Charter
or (b) to remove from office any director of this Corporation whether with or
without cause.
TENTH: NO CUMULATIVE VOTING FOR DIRECTORS:
Directors shall be elected by a plurality of the votes cast in the election. No
cumulative voting shall be permitted with respect to the election of directors.
ELEVENTH: CERTAIN POWERS DEFINED:
The following provisions are hereby adopted for the purpose of defining,
limiting and regulating the powers of the Corporation and of its directors and
shareholders:
Page 24 of Union Planters Corporation Charter
<PAGE> 75
(a) All corporate powers of the Corporation shall be exercised by its
Board of Directors except as otherwise provided by law, provided,
however, that the Board of Directors, by a resolution adopted by a
majority of the entire Board, may designate an Executive Committee
consisting of five (5) or more directors, and other committees,
consisting of five (5) or more directors, and may delegate to such
committee or committees all such authority of the Board that it deems
desirable, except that no such committee or committees, unless
specifically so authorized by the Board, shall have and exercise the
authority of the Board to:
(1) adopt, amend or repeal the Bylaws;
(2) submit to the shareholders of the Corporation any action
requiring shareholders' authorization under the Tennessee
Business Corporation Act;
(3) fill vacancies in the Board or in any committee;
(4) declare dividends or make other corporate distributions;
nor
(5) issue or reissue any Common Stock, or Preferred Stock, or
any obligation of the Corporation exchangeable for or
convertible into its capital stock of any class or any
warrant, right or option to acquire the same.
The Board may designate one or more directors as alternate members of
any such committee, who may replace any absent member or members at any
meeting of such committee. Each such committee shall serve at the
pleasure of the Board. The designation of any such committee shall
serve at the pleasure of the Board. The designation of any such
committee and the delegation thereto of authority shall not relieve any
director of any responsibility imposed by law. To the extent consistent
with law, this Charter and the Bylaws of the Corporation relating to
the conduct of meetings of the Board shall govern meetings of the
Executive and other committees.
(b) Whenever under the Tennessee Business Corporation Act shareholders
are required or permitted to take any action by vote, such action may
be taken without a meeting on written consent, setting forth the action
so taken, signed by all of the persons or entities entitled to vote
thereon. Directors may take any action which they are required or
permitted to take under the Tennessee Business Corporation Act without
a meeting in the same manner.
(c) The Board of Directors shall have the power to adopt, amend or
repeal the Bylaws of the Corporation by a majority vote of the entire
Board, but any Bylaw so adopted by the Board may be further amended or
repealed by action of the shareholders of the Corporation. The Bylaws
may contain any provision for the regulation and management of the
business or affairs of the Corporation not inconsistent with law and
this Charter.
(d) The Board of Directors shall have power from time to time to set
apart out of any funds of the Corporation available for dividends a
reserve or reserves for any proper purpose, and to abolish any such
reserve.
(e) The Board of Directors from time to time shall determine whether
and to what extent and at what times and places and under what
conditions and regulations the accounts and books of the Corporation,
or any of them, shall be open to the inspection of the shareholders,
and no shareholder shall have any right to inspect any account, book or
document of the Corporation except as conferred by statute, the Bylaws
or as authorized by resolution of the Board of Directors.
(f) The Board of Directors of the Corporation, without the vote of the
shareholders, may distribute to its shareholders out of its capital
surplus a portion of its assets, in cash or in property, in accordance
with and subject to the limitations imposed by Section 48-16-401 of the
Tennessee Business Corporation Act, provided however, that no such
distribution shall be made to the holders of any class of shares until
adequate provision shall be made for any sinking fund requirements
applicable to the retirement of Preferred Stock of the Corporation.
(g) The Corporation shall have the right to purchase or otherwise
acquire its own shares in accordance with Section 48-16-302 of the
Tennessee Business Corporation Act to the extent of unreserved and
unrestricted earned surplus available therefor, or, if such unreserved
and unrestricted earned surplus is not available, to the extent of
unreserved and unrestricted capital surplus available therefor.
TWELFTH: INDEMNIFICATION OF CERTAIN PERSONS:
To the fullest extent permitted by Tennessee law, the Corporation may indemnify
or purchase and maintain insurance to indemnify any of its directors, officers,
employees or agents and any persons who may serve at the request of the
Corporation as directors, officers, employees, trustees or agents of any other
corporation, firm, association, national banking association, state-chartered
bank, trust company, business trust, organization or any other type of entity
whether or not the Corporation shall have any ownership interest in such entity.
Such indemnification(s) may be provided for in the Bylaws, or by resolution of
the Board of Directors or by appropriate contract with the person involved.
THIRTEENTH: CHARTER AMENDMENTS:
Page 25 of Union Planters Corporation Charter
<PAGE> 76
The Corporation reserves the right to amend, alter, change or repeal any
provision made in this Charter, in the manner now or hereafter prescribed by the
laws of the State of Tennessee, and all rights conferred herein upon
shareholders and the Board of Directors are granted subject to this reservation.
FOURTEENTH: SPECIAL VOTE IN CERTAIN CASES:
(a) Except as otherwise expressly provided in Paragraph 4 of this
ARTICLE FOURTEENTH, the affirmative vote of the holders of sixty-six
and two-thirds percent (66 2/3%) or more of the outstanding shares of
capital stock of this Corporation entitled to vote generally in the
election of directors, considered for the purposes of this ARTICLE
FOURTEENTH as one class, shall be required to authorize:
(1) any merger or consolidation of this Corporation with or
into any other corporation, or other entity; or
(2) any sale, lease, exchange, or other disposition of all or
substantially all of the assets of this Corporation to or with
any other corporation, person, or other entity, if, as of the
"Date of Determination" as defined in this ARTICLE FOURTEENTH,
such other corporation, person, or entity is the "Beneficial
Owner," directly or indirectly, of ten percent (10%) or more
of the outstanding shares of capital stock of this Corporation
entitled to vote generally in the election of directors,
considered for the purposes of this ARTICLE FOURTEENTH as one
class. Such affirmative vote shall be required notwithstanding
the fact that some lesser percentage may be specified in law
or any agreement with any national securities exchange.
(b) For purposes of this ARTICLE FOURTEENTH, any corporation, person,
or other entity shall be deemed to be the "Beneficial Owner" of any
shares of capital stock of this Corporation (i) which it or any
"Affiliate" or "Associate" of it (as defined in this ARTICLE
FOURTEENTH) has the right to acquire pursuant to any agreement, or
upon exercise of conversion rights, warrants, or options, or
otherwise, or (ii) which are "Beneficially Owned," directly or
indirectly (including shares being owned through application of clause
(i) above), by any other corporation, person or entity which is its
"Affiliate" or "Associate" (as defined in this ARTICLE FOURTEENTH) or
with which it or any "Affiliate" or "Associate" or it has any
agreement, arrangement, or understanding for the purpose of acquiring,
holding, voting, or disposing of the capital stock of this
Corporation. For the purposes of this ARTICLE FOURTEENTH, the
outstanding shares of any class of capital stock of this Corporation
shall include shares deemed owned through the application of clauses
(i) and (ii) above but shall not include any other shares which may be
issuable pursuant to any agreement, or upon exercise of conversion
rights, warrants, or options, or otherwise.
(c) The Board of Directors of this Corporation shall have the power and
duty to determine for the purposes of this ARTICLE FOURTEENTH, on the
basis of information then known to it, whether any corporation, person,
or other entity "Beneficially Owns" ten percent (10%) or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, or is an "Affiliate" or an
"Associate" (as defined in this ARTICLE FOURTEENTH) or another. Any
such determination by the Board of Directors made in good faith shall
be conclusive and binding for all purposes of this ARTICLE FOURTEENTH.
(d) The provisions of this ARTICLE FOURTEENTH shall not apply to any
merger or consolidation of this Corporation with or into, or any sale,
lease, exchange, or other disposition of any assets of this Corporation
to, any corporation or entity of which a majority of the outstanding
shares of all classes of capital stock entitled to vote generally in
the election of directors, considered for this purpose as one class, is
owned of record or beneficially by this Corporation and its
subsidiaries.
(e) As used in this ARTICLE FOURTEENTH, the following terms shall have
the following meanings:
(1) Affiliate. An "Affiliate" of, or a person "affiliated"
with, a specific person, means a person that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person
specified.
(2) Associate. The term "Associate" used to indicate a
relationship with any person, means (i) any corporation or
organization (other than this Corporation or a majority-owned
subsidiary of this Corporation) of which such person is an
officer or partner or is, directly or indirectly, the
beneficial owner of ten percent (10%) or more of any class of
equity securities, (ii) any trust or other estate in which
such person has a substantial beneficial interest or as to
which such person serves as trustee or in a similar fiduciary
capacity, (iii) any relative or spouse of such person, or any
relative of such spouse, who has the same home as such person,
or (iv) any investment company registered under the Investment
Company Act of 1940 for which such person or any affiliate of
such person serves as investment adviser.
(3) Date of Determination. The term "Date of Determination"
means (i) the date on which a binding agreement (except for
the fulfillment of conditions precedent, including, without
limitation, votes of shareholders to approve such transaction)
is entered into by this Corporation, as authorized by its
Board of Directors, and another corporation, person or other
entity providing for any merger or consolidation of this
Corporation or any sale, lease, exchange or disposition of all
or substantially all of the assets of this Corporation, as
referred to in Paragraph 1 in this ARTICLE FOURTEENTH; or,
(ii) if such an agreement as referred to in item (i) is
amended so as to make it less favorable to this Corporation
and its shareholders, the date on which such amendment is
approved by the Board of Directors of this Corporation, or,
(iii) in cases where neither item (i) nor item (ii) shall be
applicable, the record date for the determination of
shareholders of this Corporation entitled to notice of and to
vote upon the transaction in question. The Board of Directors
of this Corporation shall have the power and duty to determine
for the purposes of this ARTICLE FOURTEENTH the Date of
Determination
Page 26 of Union Planters Corporation Charter
<PAGE> 77
as to any transaction. Any such determination by the Board of
Directors made in good faith shall be conclusive and binding
for all purposes of this ARTICLE FOURTEENTH.
(f) The provisions of this ARTICLE FOURTEENTH as to the vote required
for any action described herein, shall apply in addition to any other
provision for a vote required with respect to such action by law or
otherwise. Notwithstanding any other provisions of this Charter or the
Bylaws (and notwithstanding the fact that some lesser percentage may be
specified in law, the Charter, or the Bylaws), the affirmative vote of
the holders of sixty-six and two-thirds percent (66 2/3%) or more of
the outstanding shares of capital stock of this Corporation entitled to
vote generally in the election of directors (considered for this
purpose as one class) shall be required to amend, alter, or repeal this
ARTICLE FOURTEENTH.
Restated January 18, 1999
Amended January 18, 1999
Page 27 of Union Planters Corporation Charter
