SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) August 6, 1999
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AETNA INC.
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(Exact name of Registrant as Specified in Charter)
CONNECTICUT 1-11913 02-0488491
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(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)
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151 FARMINGTON AVENUE, HARTFORD, CONNECTICUT 06156
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(Address of Principal Executive Offices) (Zip Code)
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Registrant's telephone number, including area code (860) 273-0123
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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Item 2. Acquisition or Disposition of Assets.
On August 6, 1999, Aetna Inc. and certain of its subsidiaries completed the
acquisition of the Prudential HealthCare business for approximately $1 billion.
The purchase price included $500 million of senior notes of Aetna Services,
Inc. guaranteed by Aetna Inc. (the "Senior Notes") and 1,000,000 stock
appreciation rights to purchase Aetna's Common Stock issued to the Seller
(the "SARs").
The certificate representing the SARs and the related registration rights
agreement are attached hereto as Exhibits 4.01 and 4.02, respectively. The
senior indenture pursuant to which the Senior Notes were issued is attached
hereto as Exhibit 4.03. All exhibits are incorporated herein by reference.
Item 7. Exhibits.
Exhibit 4.01 Certificate representing Stock Appreciation Rights to
purchase common stock of Aetna Inc. dated August 6, 1999.
Exhibit 4.02 Registration Rights Agreement dated as of August 6, 1999 by
and between Aetna Inc. and The Prudential Insurance Company of
America.
Exhibit 4.03 Indenture dated as of August 5, 1999 by and among Aetna Inc.,
Aetna Services, Inc. and State Street Bank and Trust Company of
Connecticut, National Association.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AETNA INC.
By: /s/ Alan M. Bennet
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Name: Alan M. Bennet
Title: Corporate Controller
August 9, 1999
3
EXHIBIT 4.01
AETNA INC.
STOCK APPRECIATION RIGHTS IN RESPECT OF SHARES
OF COMMON STOCK OF AETNA INC.
(this "Certificate")
No. SAR-1 1,000,000 Stock
Appreciation Rights
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. NEITHER THIS SECURITY, NOR ANY PORTION
THEREOF OR INTEREST THEREIN MAY BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED BY THE HOLDER.
FOR VALUE RECEIVED, AETNA INC., a Connecticut corporation (the
"Company"), hereby certifies that THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a
New Jersey mutual life insurance company or its successor (the "Holder"), is
entitled, subject to the provisions of these Stock Appreciation Rights (the
"SARs" and each a "SAR"), to, upon exercise thereof, receive from the Company,
at the times specified herein, a number of fully paid and non-assessable shares
of Common Stock of the Company, par value $0.01 per share (the "Common Stock"),
having an aggregate Market Value equal to the product of (i) the Market Value
minus the Exercise Price and (ii) the number of Exercised SARs. The number of
shares of Common Stock to be received upon the exercise of this SAR and the
Exercise Price are subject to adjustment from time to time as hereinafter set
forth.
1. Definitions. (a) The following terms, as used herein, have the
following meanings:
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"Affiliate" shall have the meaning given to such term in Rule 12b-2
promulgated under the Securities and Exchange Act of 1934, as amended.
"Asset Transfer and Acquisition Agreement" means the Asset Transfer and
Acquisition Agreement dated as of December 9, 1998 among the Holder, Pruco Inc.,
the Company and Aetna Life Insurance Company, as amended.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in either the States of New Jersey or New York are
authorized by law to close.
"Duly Endorsed" means duly endorsed in blank by the Person or Persons
in whose name a stock certificate is registered or accompanied by a duly
executed stock assignment separate from the certificate with the signature(s)
thereon guaranteed by a commercial bank or trust company or a member of a
national securities exchange or of the National Association of Securities
Dealers, Inc.
"Exercise Date" means the date specified in an Exercise Notice.
"Exercise Notice" means the notice given by Holder to the Company of
its exercise of a SAR, substantially in the form annexed hereto.
"Exercise Price" means $81.8125
"Exercised SARs" means, in connection with any exercise of a SAR, the
number of SARs with respect to which an Exercise Notice shall have been given.
"Expiration Date" means 5:00 p.m. New York City time on the date which
is the fifth anniversary of the Closing Date, or if such date is not a Business
Day, the next succeeding Business Day.
"Market Value" means, at the time of an exercise of any SAR, the last
reported sale price paid for the Common Stock by a person or persons other than
the Holder and/or any of its affiliates on the trading day immediately preceding
the applicable Exercise Date on the New York Stock Exchange as reported on the
NYSE Composite Tape.
<PAGE>
"SAR Shares" means the shares of Common Stock deliverable upon exercise
of one or more SARs, as adjusted from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
(b) Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Asset Transfer and Acquisition Agreement.
2. Exercise of SARs.
(a) The Holder is entitled to exercise the SARs represented by
this Certificate in whole or in part, but in any event in respect of no
fewer than 200,000 SARs at any one time (or if fewer than 200,000 SARs
remain unexercised, in respect of such lesser number), during the
period beginning six months after the Closing Date and ending on the
Expiration Date. To exercise any SAR, the Holder shall execute and
deliver to the Company a properly completed Exercise Notice together
with this Certificate. The exercise of such SARs shall be deemed to
have been effected immediately prior to the close of business on the
date on which the foregoing requirements shall have been satisfied and
the Holder shall be deemed to be the holder of record of the SAR Shares
subject to such exercise at such effective time, notwithstanding that
the stock transfer books of the Company shall then be closed or that
certificates representing such SAR Shares shall not then be actually
delivered to the Holder.
(b) The Company shall pay any and all documentary, stamp or
similar issue or transfer taxes payable in respect of the issue or
delivery of the SAR Shares.
(c) If the Holder exercises the SARs in part only, this
Certificate shall be surrendered by the Holder to the Company and a new
Certificate of the same tenor and for the unexercised number of SARs
shall be executed by the Company. The Company shall register the new
Certificate in the name of the Holder and deliver the new Certificate
to the Person or Persons entitled to receive the same.
(d) Upon surrender of this Certificate in conformity with the
foregoing provisions, the Company shall, no later than the second
Business Day following the delivery of such Certificate to the Company
(or the third such Business Day following such delivery if the
Certificate is received after 12:00 p.m. on such date), transfer to the
Holder of this Certificate physical certificates or other appropriate
evidence of ownership
<PAGE>
of the SAR Shares or other securities or property (including any money)
to which the Holder is entitled, registered or otherwise placed in, or
payable to the order of, the name or names of the Holder or such
transferee (subject to the provision by Holder of all documentation
reasonably required to evidence or effect such transfer) as may be
directed in writing by the Holder, and shall deliver such evidence of
ownership and any other securities or property (including any money) to
the Person or Persons entitled to receive the same, together with an
amount in cash in lieu of any fraction of a share as provided in
paragraph 5 below. In the event the Holder shall request the SAR Shares
to be registered in the name of a Person other than the Holder, the
Exercise Notice shall be accompanied by an opinion of counsel (which
may be an in-house counsel of Holder) in customary form and reasonably
acceptable to the Company to the effect that the transfer of the SAR
Shares to such transferee is exempt from registration under the
Securities Act.
3. Restrictive Legend. Certificates representing SAR Shares shall
bear the following legend (or a substantially similar legend as directed by the
Company) to the extent that and for so long as such legend is required under
applicable laws:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT
BE OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH.
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF
TO CERTAIN RIGHTS AS SET FORTH IN A RIGHTS AGREEMENT BETWEEN
AETNA INC. AND FIRST CHICAGO TRUST COMPANY OF NEW YORK, DATED
AS OF JUNE 28, 1996 (THE "RIGHTS AGREEMENT"), THE TERMS OF
WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE AND A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVES OFFICES OF AETNA
INC. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS
AGREEMENT, SUCH RIGHTS MAY BE REDEEMED, MAY EXPIRE, MAY BE
AMENDED OR MAY BE EVIDENCED BY SEPARATE CERTIFICATES AND NO
LONGER BE EVIDENCED BY THIS CERTIFICATE. AETNA INC. WILL MAIL
TO THE REGISTERED HOLDER OF THIS CERTIFICATE A COPY OF THE
RIGHTS AGREEMENT WITHOUT CHARGE WITHIN FIVE BUSINESS DAYS
AFTER
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RECEIPT OF A WRITTEN REQUEST THEREFOR. UNDER CERTAIN
CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR ANY AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT) MAY BECOME NULL AND VOID.
Upon the written request therefore accompanied by an opinion of counsel
(which may be an in-house counsel of Holder) in customary form and reasonably
acceptable to the Company to the effect that either (i) such SAR Shares are
eligible for resale under Rule 144(k) under the Securities Act (or any successor
provision) or (ii) such SAR Shares are being surrendered in connection with a
transfer being made pursuant to a registration statement that is effective under
the Securities Act, the Company shall cause the certificates representing such
SAR Shares promptly to be exchanged for a certificate representing the same
number of SAR Shares not bearing such legend.
4. Reservation of Shares. The Company hereby agrees that at all times
there shall be reserved for issuance and delivery upon exercise of the SARs such
number of its authorized but unissued shares of Common Stock or other securities
of the Company from time to time issuable upon exercise of the SARs as will be
sufficient to permit the exercise in full of the SARs. All such shares shall be
duly authorized and, when issued upon such exercise, shall be validly issued,
fully paid and non-assessable, free and clear of all liens, security interests,
charges and other encumbrances and free and clear of all preemptive rights.
5. Fractional Shares. No fractional shares shall be issued upon the
exercise of the SARs, provided, however, that for purposes of determining the
number of shares of Common Stock issuable to the Holder upon exercise of SARs,
all concurrent exercises of SARs shall be aggregated. At the time specified in
paragraph 2(d), the Holder shall receive a cash payment for any fractional share
equal to the product of the applicable Market Value and such fraction.
6. No Transfer or Assignment of SARs. Neither this Certificate nor
the SARs represented hereby nor any portion thereof or interest therein may be,
directly or indirectly, sold, offered for sale, pledged, assigned, disposed of
or otherwise transferred.
7. Loss or Destruction of Certificate. Upon receipt by the Company of
evidence satisfactory to it (in the exercise of its reasonable discretion) of
the loss, theft, destruction or mutilation of this Certificate, and (in the case
of loss, theft or destruction) of the Holder's own unsecured agreement of
indemnity, and upon
<PAGE>
surrender and cancellation of this Certificate, if mutilated, the Company shall
execute and deliver a new Certificate of like tenor and date.
8. Anti-dilution Provisions.
(a) In case the Company shall at any time after the date hereof
(i) declare a dividend or make a distribution on Common Stock payable
in Common Stock, (ii) subdivide or split the outstanding Common Stock,
(iii) combine or reclassify the outstanding Common Stock into a smaller
number of shares, or (iv) issue any shares of its capital stock in a
reclassification of Common Stock (including any such reclassification
in connection with a consolidation or merger in which the Company is
the continuing corporation), the Exercise Price in effect at the time
of the record date for such dividend or distribution or at the time of
the effective date of such subdivision, split, combination or
reclassification, as the case may be, shall be proportionately adjusted
so that, giving effect to paragraph 8(i), the exercise of the SARs
after such time shall entitle the holder to receive the aggregate
number of shares of Common Stock or other securities of the Company (or
shares of any security into which such shares of Common Stock have been
reclassified pursuant to clause 8(a)(iii) or 8(a)(iv) above) which, if
the SARs had been exercised immediately prior to such time (or prior to
the appropriate record date, if any), such holder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
distribution, subdivision, split, combination or reclassification. Such
adjustment shall be made successively whenever any event listed above
shall occur.
(b) In case the Company shall issue or sell any Common Stock
(other than Common Stock issued (i) upon exercise of the SARs, (ii)
pursuant to the Company's stock incentive plans or pursuant to any
similar Common Stock related employee, agent or director compensation
plan of the Company approved by the Company's Board of Directors,
including without limitation any 401(K) plan, (iii) upon exercise or
conversion of any security the issuance of which caused an adjustment
under paragraphs 8(c) or 8(d) hereof or (iv) upon redemption of any
shares of the Company's 6.25% Class C Voting Mandatorily Convertible
Preferred Stock) without consideration or for a consideration per share
less than the Current Market Price Per Common Share (as defined in
paragraph 8(f)), the Exercise Price to be in effect after such issuance
or sale shall be determined by multiplying the Exercise Price in effect
immediately prior to such issuance or sale by a fraction, the numerator
of which shall be the sum of (x) the number of shares of Common Stock
outstanding immediately prior to the time of such issuance or sale
multiplied by the
<PAGE>
Current Market Price Per Common Share immediately prior to such
issuance or sale and (y) the aggregate consideration, if any, to be
received by the Company upon such issuance or sale, and the denominator
of which shall be the product of the aggregate number of shares of
Common Stock outstanding immediately after such issuance or sale and
the Current Market Price Per Common Share immediately prior to such
issuance or sale. In case any portion of the consideration to be
received by the Company shall be in a form other than cash, the fair
market value of such noncash consideration shall be utilized in the
foregoing computation. Such fair market value shall be determined by
the Board of Directors of the Company. The Holder shall be notified
promptly of any consideration other than cash to be received by the
Company and furnished with a description of the consideration and the
fair market value thereof, as determined by the Board of Directors.
(c) In case the Company shall fix a record date for the issuance
of rights, options or warrants to the holders of its Common Stock or
other securities entitling such holders to subscribe for or purchase
for a period expiring within 60 days of such record date shares of
Common Stock (or securities convertible into shares of Common Stock) at
a price per share of Common Stock (or having a conversion price per
share of Common Stock, if a security convertible into shares of Common
Stock) less than the Current Market Price Per Common Share on such
record date, the maximum number of shares of Common Stock issuable upon
exercise of such rights, options or warrants (or conversion of such
convertible securities) shall be deemed to have been issued and
outstanding as of such record date and the Exercise Price shall be
adjusted pursuant to paragraph 8(b) hereof, as though such maximum
number of shares of Common Stock had been so issued for the aggregate
consideration payable by the holders of such rights, options, warrants
or convertible securities prior to their receipt of such shares of
Common Stock. In case any portion of such consideration shall be in a
form other than cash, the fair market value of such noncash
consideration shall be determined as set forth in paragraph 8(b)
hereof. Such adjustment shall be made successively whenever such record
date is fixed; and if such rights, options or warrants are not so
issued or expire unexercised, or upon a change in the number of shares
of Common Stock to which the holders of such rights, options or
warrants are entitled (other than pursuant to adjustment provisions
therein comparable to those contained in this paragraph 8), the
Exercise Price shall again be adjusted to be the Exercise Price which
would then be in effect if such record date had not been fixed, in the
former event, or the Exercise Price which would then be in effect if
such holder had initially been entitled to such changed number of
shares of Common Stock, in the latter event.
<PAGE>
(d) In case the Company shall issue rights, options or warrants
entitling the holders thereof to subscribe for or purchase Common Stock
(or securities convertible into shares of Common Stock) (other than
securities or rights issued pursuant to a plan described in clause
8(b)(ii)) or shall issue convertible securities, and the price per
share of Common Stock of such rights, options, warrants or convertible
securities (including, in the case of rights, options or warrants, the
price at which they may be exercised) is less than the Current Market
Price Per Common Share on the date of issuance, the maximum number of
shares of Common Stock issuable upon exercise of such rights, options
or warrants or upon conversion of such convertible securities shall be
deemed to have been issued and outstanding as of the date of such sale
or issuance, and the Exercise Price shall be adjusted pursuant to
paragraph 8(b) hereof as though such maximum number of shares of Common
Stock had been so issued for an aggregate consideration equal to the
aggregate consideration paid for such rights, options, warrants or
convertible securities and the maximum aggregate consideration payable
by the holders of such rights, options, warrants or convertible
securities prior to their receipt of such shares of Common Stock. In
case any portion of such consideration shall be in a form other than
cash, the fair market value of such noncash consideration shall be
determined as set forth in paragraph 8(b) hereof. Such adjustment shall
be made successively whenever such rights, options, warrants or
convertible securities are issued; and if such rights, options or
warrants expire unexercised (in whole or in part), or upon a change in
the number of shares of Common Stock to which the holders of such
rights, options, warrants or convertible securities are entitled (other
than pursuant to adjustment provisions therein comparable to those
contained in this paragraph 8), the Exercise Price shall again be
adjusted to be the Exercise Price which would then be in effect if such
rights, options, warrants or convertible securities had not been
issued, in the former event, or the Exercise Price which would then be
in effect if such holders had initially been entitled to such changed
number of shares of Common Stock, in the latter event. No adjustment of
the Exercise Price shall be made pursuant to this paragraph 8(d) to the
extent that the Exercise Price shall have been adjusted pursuant to
paragraph 8(c) upon the setting of any record date relating to such
rights, options, warrants or convertible securities and such adjustment
fully reflects the number of shares of Common Stock to which the
holders of such rights, options, warrants or convertible securities are
entitled and the price payable therefor.
(e) In case the Company shall fix a record date for the making of
a distribution to holders of Common Stock (including any such
<PAGE>
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences of
indebtedness, cash, assets or other property (other than (i) the
Company's regular quarterly cash dividend or (ii) dividends payable in
Common Stock or rights, options or warrants referred to in, and in the
event of (ii) above, for which an adjustment is made pursuant to,
paragraph 8(c) hereof), the Exercise Price to be in effect after such
record date shall be determined by multiplying the Exercise Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price Per Common Share
on such record date, less the fair market value (determined as set
forth in paragraph 8(b) hereof) of the portion of the assets, other
property or evidence of indebtedness so to be distributed which is
applicable to one share of Common Stock, and the denominator of which
shall be such Current Market Price Per Common Share. Such adjustments
shall be made successively whenever such a record date is fixed; and in
the event that such distribution is not so made, the Exercise Price
shall again be adjusted to be the Exercise Price which would then be in
effect if such record date had not been fixed.
(f) For the purpose of any computation under paragraph 8(b),
8(c), 8(d) or 8(e) hereof, on any determination date the Current Market
Price Per Common Share shall be deemed to be the average of the Daily
Prices (as defined below) per share of the applicable class of Common
Stock for the 20 consecutive trading days immediately prior to such
date. "Daily Price" means the closing price on such day as reported on
the NYSE Composite Transactions Tape. For purposes of any computation
under this paragraph 8, the number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by
or for the account of the Company.
(g) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least one
percent in such price; provided that any adjustments which by reason of
this paragraph 8(g) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this paragraph 8 shall be made to the nearest one
tenth of a cent or to the nearest hundredth of a share, as the case may
be.
(h) If at any time as a result of the provisions of this
paragraph 8, the holder of the SARs upon subsequent exercise shall
become entitled to receive any shares of capital stock of the Company
other than Common Stock, the number of such other shares so receivable
upon exercise of the SARs shall thereafter be subject to adjustment
from time to time in a
<PAGE>
manner and on terms as nearly equivalent as practicable to the
provisions contained herein.
(i) Upon each adjustment of the Exercise Price as a result of the
calculations made in paragraphs 8(a), 8(b), 8(c), 8(d) or 8(e) hereof,
this Certificate shall thereafter evidence the right to exercise that
number of SARs, at the adjusted Exercise Price, obtained by (i)
multiplying (x) the number of SARs represented by this Certificate
immediately prior to this adjustment of the number of SARs by (y) the
Exercise Price in effect immediately prior to such adjustment of the
Exercise Price and (ii) dividing the product so obtained by the
Exercise Price in effect immediately after such adjustment of the
Exercise Price.
9. Consolidation, Merger, or Sale of Assets. In case of any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock) or any sale or transfer of all or
substantially all of the assets of the Company or of the Person formed by such
consolidation or resulting from such merger or which acquires such assets, as
the case may be, the Holder shall have the right thereafter to exercise the SARs
for (in lieu of Common Stock) the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by a
holder of the number of shares of Common Stock for which the SARs would have
been exercisable immediately prior to such consolidation, merger, sale or
transfer, assuming (i) such holder of Common Stock is not a Person with which
the Company consolidated or into which the Company merged or which merged into
the Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person and (ii) in the
case of a consolidation, merger, sale or transfer which includes an election as
to the consideration to be received by the holders, such holder of Common Stock
failed to exercise its rights of election as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer is
not the same for each share of Common Stock held immediately prior to such
consolidation, merger, sale or transfer by other than a constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not have
been exercised ("non-electing share"), then for the purpose of this paragraph 9
the kind and amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). Adjustments for events subsequent to the effective date of
such a consolidation,
<PAGE>
merger and sale of assets shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Certificate. In any such event, effective
provisions shall be made in the certificate or articles of incorporation of the
resulting or surviving corporation, in any contract of sale, conveyance, lease
or transfer, or otherwise so that the provisions set forth herein for the
protection of the rights of the Holder shall thereafter continue to be
applicable; and any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon exercise, such shares of stock, other
securities, cash and property. The provisions of this paragraph 9 shall
similarly apply to successive consolidations, mergers, sales, leases or
transfers.
10. Notices. Any notice, demand or delivery authorized by this
Certificate shall be in writing and shall be given to the Holder or the Company,
as the case may be, at its address (or telecopier number) set forth below, or
such other address (or telecopier number) as shall have been furnished to the
party giving or making such notice, demand or delivery:
if to the Company, to:
Aetna Inc.
151 Farmington Avenue, MB66
Hartford, CT 06156
Telecopier No.: (860) 273-1314
Attention: Alfred P. Quirk, Jr.
with a copy to:
Aetna Inc.
Office of Corporate Secretary
151 Farmington Avenue
Hartford, CT 06156
Telecopier No.: (860) 273-8340
Attention: William J. Casazza, Esq.
and
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Telecopier No.: (212) 450-4800
Attention: David L. Caplan, Esq.
if to the Holder, to:
The Prudential Insurance Company of America
751 Broad Street
Newark, NJ 07102
Telecopier No.: (973) 802-8287
<PAGE>
Attention: Corporate Secretary
with a copy to:
The Prudential Insurance Company of America
751 Broad Street
Newark, NJ 07102
Telecopier No.: (973) 802-7157
Attention: Arthur J. Powell, Jr.
Enterprise Planning Unit
and
The Prudential Insurance Company of America
Four Gateway Center
Newark, NJ 07102
Telecopier No.: (973) 802-3853
Attention: Richard A. Hibbard, Esq.
Law Department
and
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Telecopier No.: (212) 735-2000
Attention: Paul T. Schnell, Esq.
Each such notice, demand or delivery shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the intended recipient confirms the receipt of such telecopy or (ii)
if given by any other means, when received at the address specified herein.
11. Rights of the Holder. Prior to the exercise of any SARs, the Holder
shall not, by virtue hereof, be entitled to any rights of a shareholder of the
Company, including, without limitation, the right to vote, to receive dividends
or other distributions, to exercise any preemptive right or to receive any
notice of meetings of shareholders or any notice of any proceedings of the
Company except as may be specifically provided for herein.
12. GOVERNING LAW. THIS CERTIFICATE AND ALL RIGHTS ARISING HEREUNDER
SHALL BE CONSTRUED AND DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, AND THE PERFORMANCE THEREOF SHALL BE GOVERNED AND ENFORCED IN
ACCORDANCE WITH SUCH LAWS.
<PAGE>
13. Amendments; Waivers. Any provision of this Certificate may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the Holder and the Company, or in the
case of a waiver, by the party against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
<PAGE>
IN WITNESS WHEREOF, the Company has duly caused this Certificate to be
signed by its duly authorized officer and to be dated as of August 6, 1999.
AETNA INC.
By: /s/ Alan J. Weber
--------------------------------
Name: Alan J. Weber
Title: Vice Chairman for
Strategy and Finance
Acknowledged and Agreed:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Arthur J. Powell
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Name: Arthur J. Powell
Title: Vice President
<PAGE>
EXERCISE NOTICE
(To be delivered and executed upon exercise of the SARs)
To: Aetna Inc.
151 Farmington Avenue
Hartford, CT 06156
The undersigned notifies you that it is hereby exercising ______ SARs to
receive shares of Common Stock, par value $0.01 per share, of Aetna Inc.
The undersigned irrevocably exercises _______ SARs in exchange for that
number of shares (the "SAR Shares") of Common Stock, par value $0.01 per share,
of Aetna Inc. (the "Company") calculated in accordance with the within
Certificate, all on the terms and conditions specified in the within
Certificate, surrenders this Certificate and all right, title and interest
therein to the Company and directs that the SAR Shares deliverable upon the
exercise of the SARs be registered or placed in the names and at the addresses
specified below and delivered thereto in accordance with the provisions set
forth in paragraph 2 of the Certificate. In the event of a partial exercise of
SARs represented by this Certificate, the undersigned directs that a new
Certificate evidencing the SARs which are not exercised hereby shall be
delivered to the Holder at its address specified in Section 10 of this
Certificate no later than the second Business Day following the delivery of this
Exercise Notice to the Company (or if this Exercise Notice is delivered after
noon, no later than the third such Business Day).
Exercise Date:
---------------
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By:
-----------------------------------------
Name:
Title:
-----------------------------------------
(Street Address)
-----------------------------------------
(City) (State) (Zip Code)
<PAGE>
IF PHYSICAL CERTIFICATES TO BE ISSUED:
- -------------------------------------
Securities and/or check to be issued to:
Please insert social security or identifying number: ___________________________
Name: __________________________________________________________________________
Street Address: ________________________________________________________________
City, State and Zip Code: ______________________________________________________
IF SECURITIES TO BE ISSUED THROUGH BOOK-ENTRY WITH DTC:
- ------------------------------------------------------
Securities to be credited to:
Direct Participant name, address and telephone number: _________________________
________________________________________________________________________________
________________________________________________________________________________
Direct Participant Number: _____________________________________________________
Check to be issued to:
Please insert social security or identifying number: ___________________________
Name: __________________________________________________________________________
Street Address: ________________________________________________________________
City, State and Zip Code: ______________________________________________________
EXHIBIT 4.02
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of August 6, 1999 between
Aetna Inc., a Connecticut corporation (the "Company") and The Prudential
Insurance Company of America, a New Jersey mutual life insurance company (the
"Shareholder").
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended and
the rules and regulations thereunder.
"Asset Transfer and Acquisition Agreement" means the Asset Transfer and
Acquisition Agreement dated as of December 9, 1998 among the Shareholder, Pruco
Inc., the Company and Aetna Life Insurance Company, as amended.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in either of the States of New Jersey or New York are
authorized by law to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value $0.01
per share.
"Person" means an individual, a corporation, a partnership, limited
liability company, an association, a trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Piggyback Registration" means a Piggyback Registration as defined in
Section 2.02.
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"Registrable Securities" means all shares of Common Stock issued to the
Shareholder upon the exercise of those Stock Appreciation Rights in respect of
shares of Common Stock of the Company granted on August 6, 1999.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in Section 2.01.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.01. Shelf Registration. (a) The Company shall prepare and
file with the Commission a shelf registration statement (as amended and
supplemented from time to time, the "Shelf Registration Statement") relating to
the Registrable Securities in accordance with Rule 415 under the 1933 Act and
will use its best efforts to cause such Shelf Registration Statement to be
declared effective no later than the date which is six months from the Closing
Date (as defined in the Asset Transfer and Acquisition Agreement) and to keep
such Shelf Registration Statement continuously effective and in compliance with
the 1933 Act and usable for resale of such Registrable Securities, for a period
from the date on which the Commission declares such Shelf Registration Statement
effective until the first date upon which the aggregate amount of Registrable
Securities then owned by the Shareholder could be sold pursuant to Rule 144
under the 1933 Act within 15 trading days.
(b) If the aggregate proceeds from an offering of Registrable
Securities pursuant to the Shelf Registration Statement are expected to be more
than $100 million and if Shareholder so elects, such offering may be in the form
of an underwritten offering. Shareholder shall select the managing Underwriters
and any additional investment bankers and managers to be used in connection with
such offering; provided that such managing Underwriters and additional
investment bankers must be reasonably satisfactory to the Company.
SECTION 2.02. Piggyback Registration. If the Company proposes to file a
registration statement under the 1933 Act with respect to an offering of Common
Stock (i) for the Company's own account (other than a registration statement on
Form S-4 or S-8 (or any substitute form that may be adopted by the Commission))
or (ii) for the account of any of its holders of Common Stock, then the Company
2
<PAGE>
shall give written notice of such proposed filing to Shareholder as soon as
practicable (but in no event less than 10 days before the anticipated filing
date), and such notice shall offer Shareholder the opportunity to register such
number of shares of Registrable Securities as Shareholder may request on the
same terms and conditions as the Company's or such holder's Common Stock (a
"Piggyback Registration").
SECTION 2.03. Reduction of Offering. Notwithstanding anything contained
herein, if the managing Underwriter of an offering described in Section 2.02
delivers a written opinion to the Company that (i) the size of the offering that
Shareholder, the Company and any other Persons intend to make or (ii) the
combination of securities that Shareholder, the Company and such other Persons
intend to include in such offering are such that the success of the offering
would be materially and adversely affected, then (A) if the size of the offering
is the basis of such Underwriter's opinion, the amount of Registrable Securities
to be offered for the account of Shareholder shall be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing Underwriter; provided that
in the case of a Piggyback Registration, if securities are being offered for the
account of Persons other than the Company, then the proportion by which the
amount of such Registrable Securities intended to be offered for the account of
Shareholder is reduced shall not exceed the proportion by which the amount of
such securities intended to be offered for the account of such other Persons is
reduced; and (B) if the combination of securities to be offered is the basis of
such Underwriter's opinion, (x) the Registrable Securities to be included in
such offering shall be reduced as described in clause (A) above (subject to the
proviso in clause (A)), and (y) if the actions described in sub-clause (x) of
this clause (B) would, in the judgment of the managing Underwriter, be
insufficient substantially to eliminate the adverse effect that inclusion of the
Registrable Securities requested to be included would have on such offering,
such Registrable Securities will be excluded from such offering.
ARTICLE 3
REGISTRATION PROCEDURES
SECTION 3.01. Filings; Information. In connection with the Shelf
Registration Statement pursuant to Section 2.01 hereof, the Company and
Shareholder agree as follows:
3
<PAGE>
(a) Shareholder will notify Company at least 10 days prior to making
any offer or sale of any Registrable Securities pursuant to the Shelf
Registration Statement. The Company shall be entitled, by notifying Shareholder
within 5 days of receiving the aforementioned notice from the Shareholder, to
postpone or suspend for a reasonable period of time (in no event to exceed 75
days) the offering of any Registrable Securities if the Company shall determine
in good faith that such offering will interfere with a pending or contemplated
financing, merger, sale or acquisition of assets, recapitalization or other
corporate action or policies of the Company. If the Company elects to so
postpone or suspend the offering of any Registrable Securities, the Company
shall, to the extent necessary, amend or supplement the Shelf Registration
Statement to permit the offering of Registrable Securities within 75 days of
receiving the aforementioned notice from the Shareholder.
(b) The Company will, if requested, prior to filing the Shelf
Registration Statement or any amendment or supplement thereto (but not including
any document incorporated by reference in the Shelf Registration Statement),
furnish to Shareholder and each applicable managing Underwriter, if any, without
charge, copies thereof, and thereafter furnish to Shareholder and each such
Underwriter, if any, without charge, such number of copies of such registration
statement, amendment and supplement thereto (including all exhibits thereto and
any document incorporated by reference in the Shelf Registration Statement) and
the prospectus included in such registration statement (including each
preliminary prospectus) as Shareholder or each such Underwriter may reasonably
request in order to facilitate the sale of the Registrable Securities.
(c) After the filing of the Shelf Registration Statement, the Company
will promptly notify Shareholder of any stop order issued or, to the Company's
knowledge, threatened to be issued by the Commission and use its best efforts to
prevent the entry of such stop order or to remove it if entered at the earliest
possible date.
(d) The Company will use its best efforts in cooperation with
Shareholder and the Underwriters or agents, as the case may be, to qualify the
Registrable Securities for offer and sale under such other securities or blue
sky laws of such jurisdictions in the United States as Shareholder reasonably
requests; provided that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in any
such jurisdiction.
(e) At any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection with
sales by an
4
<PAGE>
Underwriter or dealer, the Company will as promptly as is practicable notify
Shareholder of the occurrence of any event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
shall as promptly as practicable make available to Shareholder and to the
Underwriters any such supplement or amendment. Shareholder agrees that, upon
receipt of any notice from the Company of the occurrence of any event of the
kind described in the preceding sentence, Shareholder will forthwith discontinue
the offer and sale of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until receipt by Shareholder and
the Underwriters of the copies of such supplemented or amended prospectus and,
if so directed by the Company, Shareholder will deliver to the Company all
copies, other than permanent file copies then in Shareholder's possession, of
the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice.
(f) The Company will deliver to Shareholder and each Underwriter or
agent participating in an offering pursuant to the Shelf Registration Statement,
without charge, as many copies of each preliminary prospectus as Shareholder or
such Underwriter or agent may reasonably request, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will deliver to Shareholder and each Underwriter or agent participating
in such offering, without charge, from time to time during the period when a
prospectus is required to be delivered under the 1933 Act, such number of copies
of such prospectus (as supplemented or amended) as Shareholder or such
Underwriter or agent may reasonably request.
(g) The Company will comply with the 1933 Act and the rules and
regulations of the Commission thereunder, and the 1934 Act and the rules and
regulations of the Commission thereunder so as to permit the completion of the
distribution of the Registrable Securities pursuant to the Shelf Registration
Statement in accordance with the intended method or methods of distribution
contemplated in the prospectus relating thereto.
(h) Upon the request of Shareholder or the managing Underwriter or
agent, as the case may be, or if required by the rules, regulations or
instructions applicable to the registration form used by the Company, or by the
1933 Act or by any other rules and regulations thereunder in connection with the
offering of Registrable Securities pursuant to the Shelf Registration Statement,
the Company will prepare a prospectus supplement that complies with the 1933 Act
and the
5
<PAGE>
rules and regulations of the Commission thereunder and that sets forth the
aggregate amount of the Registrable Securities being sold, the name or names of
any Underwriters or agents participating in the offering, the price at which the
Registrable Securities are to be sold, any discounts, commissions or other items
constituting compensation, and such other information as Shareholder or the
managing Underwriter or agent, as the case may be, and the Company deem
appropriate in connection with the offering of the Registrable Securities prior
to its being used or filed with the Commission.
(i) The Company may require the Shareholder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities as may be legally required in connection with such
registration.
(j) The Company will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the sale of such
Registrable Securities.
(k) The Company will furnish to Shareholder and to each Underwriter a
signed counterpart, addressed to Shareholder or such Underwriter, of (i) an
opinion or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as Shareholder or the managing
Underwriter reasonably requests.
(l) The Company will make generally available to its security holders,
as soon as reasonably practicable, an earnings statement covering a period of 12
months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act and the rules and regulations of the Commission
thereunder.
(m) The Company will use its reasonable efforts to cause all such
Registrable Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
SECTION 3.02. Registration Expenses. In connection with the Shelf
Registration Statement and in connection with any Piggyback Registration, the
Company shall pay the following expenses incurred in connection with such
registration: (i) filing fees with the Commission, (ii) fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
6
<PAGE>
Registrable Securities), (iii) printing expenses, (iv) fees and expenses
incurred in connection with the listing of the Registrable Securities, (v) fees
and expenses of counsel and independent certified public accountants for the
Company and (vi) the reasonable fees and expenses of any additional experts
retained by the Company in connection with such registration. The Shareholder
shall pay any underwriting fees, discounts or commissions attributable to the
sale of Registrable Securities and any out-of-pocket expenses of Shareholder.
ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.01. Indemnification by the Company. The Company agrees to
indemnify and hold harmless Shareholder, its officers and directors, and each
Person, if any, who controls Shareholder within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information,
relating to Shareholder or the plan of distribution furnished in writing to the
Company by or on behalf of Shareholder expressly for use therein; provided that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of Shareholder if a copy of the most current
prospectus at the time of the delivery of the Registrable Securities was not
provided to purchaser and such current prospectus would have cured the defect
giving rise to such loss, claim, damage or liability and was in fact previously
furnished to the Shareholder and the managing Underwriters, if any, in
quantities sufficient to deliver the same to all such purchasers. The Company
also agrees to indemnify any Underwriters of the Registrable Securities, their
officers and directors and each person who controls such Underwriters on
substantially the same basis as that of the indemnification of Shareholder
provided in this Section 4.01.
SECTION 4.02. Indemnification by Shareholder. Shareholder agrees to
indemnify and hold harmless the Company, its officers and directors, and each
Person, if any, who controls the Company within the meaning of either Section 15
7
<PAGE>
of the 1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company to Shareholder, but only with reference to
information relating to Shareholder or the plan of distribution furnished in
writing by or on behalf of Shareholder expressly for use in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus. Shareholder also agrees to indemnify and
hold harmless any Underwriters of the Registrable Securities, their officers and
directors and each person who controls such Underwriters on substantially the
same basis as that of the indemnification of the Company provided in this
Section 4.02.
SECTION 4.03. Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.01 or Section 4.02, such Person (the "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing; and the Indemnifying Party, upon the request
of the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, or if
there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment.
8
<PAGE>
SECTION 4.04. Contribution. (a) If the indemnification provided for in
this Article 4 is unavailable to an Indemnified Party in respect of any losses,
claims, damages or liabilities referred to herein, then in lieu of such
indemnification (i) as between the Company, on the one hand, and Shareholder, on
the other hand, the Company and Shareholder shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company and Shareholder, as incurred, in such
proportion as is appropriate to reflect the relative fault of the Company, on
the one hand, and of Shareholder, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations and
(ii) as between the Company and Shareholder, on the one hand, and the
Underwriters or agents, on the other hand, the Company, Shareholder,
Underwriters and agents shall contribute to such aggregate losses, liabilities,
claims, damages and expenses in proportion such that (x) the Underwriters and
agents are responsible for that portion represented by the percentage that the
underwriting discounts and commissions for the offering appearing on the cover
page of the relevant prospectus (or, if not set forth on the cover page, that
are applicable to the relevant offering) bear to the initial public offering
price appearing on the cover page (or, if not set forth on the cover page, that
are applicable to the offering), and (y) Shareholder and the Company are
responsible to contribute pro rata, based upon the amount of net proceeds
realized by each, in respect of the balance.
(b) The relative fault of the Company on the one hand and Shareholder
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by Shareholder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(c) The Company and Shareholder agree that it would not be just and
equitable if contribution pursuant to this Section 4.04 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in Section 4.04 (a). The amount paid
or payable by an Indemnified Party as a result of the losses, claims, damages or
liabilities referred to in Section 4.04(a) shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Article 4, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or
9
<PAGE>
alleged untrue statement or omission or alleged omission, and Shareholder shall
not be required to contribute any amount in excess of the amount by which the
net proceeds of the offering (before deducting expenses) received by Shareholder
exceeds the amount of any damages which Shareholder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Participation in Underwritten Registrations. No Person
may participate in any underwritten registered offering contemplated hereunder
unless such Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements or this Agreement.
SECTION 5.02. Rule 144. The Company covenants that it will file any
reports required to be filed by it under the 1933 Act and the 1934 Act and that
it will take such further action as Shareholder may reasonably request to the
extent required from time to time to enable Shareholder to sell Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by Rule 144 under the 1933 Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission. Upon the request of Shareholder, the Company will deliver to
Shareholder a written statement as to whether it has complied with such
reporting requirements.
SECTION 5.03. Transfer of Registration Rights. None of the rights of
Shareholder under this Agreement shall be assignable by Shareholder except as
provided in Section 5.06 hereof.
SECTION 5.04. Notices. All notices, requests and other communications
to either party hereunder shall be in writing (including telecopy or similar
writing) and shall be given,
10
<PAGE>
if to the Company, to:
Aetna Inc.
151 Farmington Avenue, MB66
Hartford, CT 06156
Telecopier No.: (860) 273-1314
Attention: Alfred P. Quirk, Jr.
with a copy to:
Aetna Inc.
Office of the Corporate Secretary
151 Farmington Avenue
Hartford, CT 06156
Telecopier No.: (860) 273-8340
Attention: William J. Casazza, Esq.
and
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Telecopier No.: (212) 450-4800
Attention: David L. Caplan, Esq.
if to Shareholder, to:
The Prudential Insurance Company of America
751 Broad Street
Newark, NJ 07102
Telecopier No.: (973) 802-8287
Attention: Corporate Secretary
with a copy to:
The Prudential Insurance Company of America
751 Broad Street
Newark, NJ 07102
Telecopier No.: (973) 802-7157
Attention: Arthur J. Powell, Jr.
Enterprise Planning Unit
and
The Prudential Insurance Company of America
Four Gateway Center
Newark, NJ 07102
Telecopier No.: (973) 802-3853
Attention: Richard A. Hibbard, Esq.
Law Department
11
<PAGE>
and
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Telecopier No.: (212) 735-2000
Attention: Paul T. Schnell, Esq.
or such other address or telecopier number as such party may hereafter specify
for the purpose by notice to the other party hereto. Each such notice, request
or other communication shall be effective when delivered at the address
specified in this Section 5.05.
SECTION 5.05. Amendments; No Waivers. (a) Any provision of this
Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by Shareholder and the
Company, or in the case of a waiver, by the party against whom the waiver is to
be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 5.06. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns (it being understood that the rights of
Shareholder hereunder may be assigned only to a successor corporation or any
wholly-owned subsidiary of Shareholder; provided, that no such assignment shall
relieve Shareholder of its obligations hereunder). Neither this Agreement nor
any provision hereof is intended to confer upon any Person other than the
parties hereto and their respective successors and permitted assigns any rights
or remedies hereunder.
SECTION 5.07. Counterparts; Effectiveness. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
a counterpart hereof signed by the other party hereto.
SECTION 5.08. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings and negotiations, both written
and
12
<PAGE>
oral, between the parties with respect thereto. No representation, inducement,
promise, understanding, condition or warranty not set forth herein or therein
has been made or relied upon by any of the parties hereto.
SECTION 5.09. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to the conflicts of law rules of such state.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
AETNA INC.
/s/ Alan J. Weber
---------------------------------------
By: Name: Alan J. Weber
Title: Vice President for Strategy
and Finance
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: /s/ Arthur J. Powell
---------------------------------------
Name: Arthur J. Powell
Title: Vice President
14
EXHIBIT 4.03
AETNA SERVICES, INC.,
ISSUER
AETNA INC.,
GUARANTOR
AND
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL ASSOCIATION,
TRUSTEE
-------------
INDENTURE
Dated as of August 5, 1999
-------------
$500,000,000
7.00% Guaranteed Senior Notes due 2002
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Compliance Certificates and Opinions............................8
SECTION 1.03. Form of Documents Delivered to Trustee..........................9
SECTION 1.04. Acts of Holders; Record Dates..................................10
SECTION 1.05. Notices, Etc., to Trustee, Company and Guarantor...............11
SECTION 1.06. Notice to Holders; Waiver......................................12
SECTION 1.07. Conflict with Trust Indenture Act..............................12
SECTION 1.08. Effect of Headings and Table of Contents.......................13
SECTION 1.09. Successors and Assigns.........................................13
SECTION 1.10. Separability Clause............................................13
SECTION 1.11. Benefits of Indenture..........................................13
SECTION 1.12. Governing Law..................................................13
SECTION 1.13. Legal Holidays.................................................13
SECTION 1.14. Personal Immunity from Liability for Incorporators,
Stockholders, Etc..............................................13
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally................................................14
SECTION 2.02. Form of Face of Security.......................................15
SECTION 2.03. Form of Reverse of Security....................................17
SECTION 2.04. Restrictive Legends............................................20
SECTION 2.05. Form of Trustee's Certificate of Authentication................22
SECTION 2.06. Form of Guarantee..............................................23
ARTICLE 3
THE SECURITIES
SECTION 3.01. Amount Limited.................................................26
SECTION 3.02. Denominations..................................................26
SECTION 3.03. Execution, Authentication, Delivery and Dating.................26
SECTION 3.04. Registration, Registration of Transfer and Exchange............27
SECTION 3.05. Book-entry Provisions for Global Securities....................28
SECTION 3.06. Special Transfer Provisions....................................30
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities...............33
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SECTION 3.08. Payment of Interest; Interest Rights Preserved.................34
SECTION 3.09. Persons Deemed Owners..........................................35
SECTION 3.10. Cancellation...................................................36
SECTION 3.11. Computation of Interest........................................36
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture........................36
SECTION 4.02. Application of Trust Fund......................................38
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default..............................................38
SECTION 5.02. Acceleration of Maturity; Rescission Annulment.................41
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................42
SECTION 5.04. Trustee May File Proofs of Claim...............................43
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.....................................................44
SECTION 5.06. Application of Money Collected.................................44
SECTION 5.07. Limitation on Suits............................................45
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest...........................................46
SECTION 5.09. Restoration of Rights and Remedies.............................46
SECTION 5.10. Rights and Remedies Cumulative.................................46
SECTION 5.11. Delay or Omission Not Waiver...................................47
SECTION 5.12. Control by Holders.............................................47
SECTION 5.13. Waiver of Past Defaults........................................48
SECTION 5.14. Undertaking for Costs..........................................48
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default...............................................49
SECTION 6.02. Notice of Defaults.............................................50
SECTION 6.03. Certain Rights of Trustee......................................50
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.........51
SECTION 6.05. May Hold Securities............................................52
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SECTION 6.06. Money Held in Trust............................................52
SECTION 6.07. Compensation and Reimbursement.................................52
SECTION 6.08. Disqualification; Conflicting Interests........................53
SECTION 6.09. Corporate Trustee Required; Eligibility........................53
SECTION 6.10. Resignation and Removal; Appointment of Successor..............53
SECTION 6.11. Acceptance of Appointment by Successor.........................55
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.......................................................56
SECTION 6.13. Preferential Collection of Claims Against Company or
Guarantor......................................................56
SECTION 6.14. Appointment of Authenticating Agent............................56
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 7.01. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders...........................................58
SECTION 7.02. Preservation of Information; Communication to Holders..........58
SECTION 7.03. Reports by Trustee.............................................59
SECTION 7.04. Reports by Company and Guarantor...............................59
ARTICLE 8
CONSOLIDATION, MERGER, OR SALE OF ASSETS
SECTION 8.01. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms..................................................59
SECTION 8.02. Successor Substituted..........................................60
SECTION 8.03. Assumption by Guarantor or Subsidiary of Company's
Obligations....................................................61
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.............62
SECTION 9.02. Supplemental Indentures with Consent of Holders................63
SECTION 9.03. Execution of Supplemental Indentures...........................64
SECTION 9.04. Effect of Supplemental Indentures..............................65
SECTION 9.05. Reference in Securities to Supplemental Indentures.............65
SECTION 9.06. Conformity with the Trust Indenture Act........................65
SECTION 9.07. Waiver of Compliance by Holders................................65
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ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest....................66
SECTION 10.02. Maintenance of Office or Agency by Company and
Guarantor.....................................................66
SECTION 10.03. Money for Securities Payments to Be Held in Trust.............67
SECTION 10.04. Statement by Officers as to Default...........................68
SECTION 10.05. Limitations on Liens on Common Stock of Principal
Subsidiaries..................................................68
SECTION 10.06. Rule 144A Information.........................................69
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01. Company's Option to Effect Defeasance or Covenant
Defeasance....................................................69
SECTION 11.02. Defeasance and Discharge......................................69
SECTION 11.03. Covenant Defeasance...........................................70
SECTION 11.04. Conditions to Defeasance or Covenant Defeasance...............70
SECTION 11.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.................72
SECTION 11.06. Reinstatement.................................................73
ARTICLE 12
GUARANTEE OF SECURITIES
SECTION 12.01. Guarantee.....................................................74
SECTION 12.02. Subrogation...................................................74
SECTION 12.03. Reinstatement.................................................75
SECTION 12.04. Execution and Delivery of Guarantees..........................75
Appendix A Form of Institutional Accredited Investor Letter
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INDENTURE, dated as of August 5, 1999, among AETNA SERVICES, INC., a
corporation duly organized and validly existing under the laws of the State of
Connecticut (herein called the "Company"), having its principal office at 151
Farmington Avenue, Hartford, Connecticut 06156, AETNA INC., a corporation duly
organized and existing under the laws of the State of Connecticut (herein
called the "Guarantor"), having its principal office at 151 Farmington Avenue,
Hartford, Connecticut 06156 and STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, a national association duly organized and
existing under the laws of the United States of America, as Trustee (herein
called the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 7.00% guaranteed senior notes due
2002 (herein called the "Securities").
The Guarantor has duly authorized the unconditional guarantee of the
Securities on the terms hereinafter set forth and the execution and delivery of
the Indenture.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or the Securities Act of 1933, as amended, either directly
or by reference therein, have the meanings assigned to them therein;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Agent Members" has the meaning provided in Section 3.05(a).
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate the
Securities.
"Board of Directors", when used with reference to either the Company
or the Guarantor, means either (i) the Board of Directors of the Company or the
Guarantor, as the case may be, the Executive Committee of such Board of
Directors or any other duly authorized committee of directors and/or officers
appointed by such Board of Directors or Executive Committee, or (ii) one or
more duly authorized officers of the Company or the Guarantor, as the case may
be, to whom the Board of Directors of the Company or the Guarantor or a
committee thereof has delegated the authority to act with respect to the
matters contemplated by this Indenture.
"Board Resolution", when used with reference to either the Company or
the Guarantor, means (i) a copy of a resolution certified by the Corporate
Secretary or an Assistant Corporate Secretary of the Company or the Guarantor,
as the case may be, to have been duly adopted by the Board of Directors or a
committee thereof and to be in full force and effect on the date of such
certification or (ii) a certificate signed by the authorized officer or
officers of the Company or the Guarantor, as the case may be, to whom the Board
of Directors of the Company or the Guarantor or a committee thereof has
delegated its authority (as described in the definition of Board of Directors),
and in each case, delivered to the Trustee.
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"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means with respect to any Principal Subsidiary, stock
of any class, however designated, except stock which is non-participating
beyond fixed dividend and liquidation preferences and the holders of which have
either no voting rights or limited voting rights entitling them, only in the
case of certain contingencies, to elect less than a majority of the directors
(or persons performing similar functions) of such Principal Subsidiary, and
shall include securities of any class, however designated, which are
convertible into such Common Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order", when used with reference to the
Company or the Guarantor, means a written request or order signed in the name
of the Company or of the Guarantor, as the case may be, by (i) any two of the
following individuals: the Chairman, the President, a Vice Chairman or a Vice
President, or (ii) by one of the foregoing individuals and by any other Vice
President, the Treasurer, an Assistant Treasurer, the Corporate Secretary or an
Assistant Corporate Secretary or any other individual authorized by the Board
of Directors for such purpose, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
located at 225 Asylum Street, 29th floor, Goodwin Square, Hartford, Connecticut
06103 at which at any particular time its corporate trust business shall be
administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 11.03.
"Defaulted Interest" has the meaning specified in Section 3.08.
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"Defeasance" has the meaning specified in Section 11.02.
"Depositary" means the depositary of each Global Security, which
initially shall be The Depository Trust Company, a New York corporation.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute thereto.
"Global Security" has the meaning specified in Section 2.01.
"Guarantee" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the guarantee set forth in Section 12.01.
"Guaranteed Obligations" shall have the meaning set forth in
Section 12.01.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security except that
the last Interest Payment Date shall be August 6, 2002.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
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"Non-Recourse Debt" means any indebtedness for money borrowed as to
which the liability of the Guarantor, the Company or the Principal Subsidiaries
is limited solely to specific assets.
"Notice of Default" means a written notice of the kind specified in
Section 5.01(4).
"Officers' Certificate", when used with respect to the Company or the
Guarantor, means a certificate signed by (i) any two of the following
individuals: the Chairman, the President, a Vice Chairman or a Vice President,
or (ii) by one of the foregoing individuals and by any other Vice President,
the Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant
Corporate Secretary, of the Company or the Guarantor, as the case may be, or
any other individual authorized by the Board of Directors of the Company or the
Guarantor, as the case may be, for such purpose, and delivered to the Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
10.04 shall be the principal executive, financial or accounting officer of the
Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company or the Guarantor, as the case may be, or
who may be other counsel reasonably satisfactory to the Trustee. Each such
opinion shall include the statements required by Section 314(e) of the Trust
Indenture Act and those provided for in Section 1.02, and such others as may
reasonably be requested by the Trustee, if and to the extent required hereby.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other
than the Company or the Guarantor) in trust or set aside and segregated in
trust by the Company or the Guarantor (if the Company or the Guarantor
shall act as Paying Agent) for the Holders of such Securities;
(iii) Securities as to which Defeasance has been effected pursuant to
Section 11.02; and
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(iv) Securities which have been replaced pursuant to Section 3.07 or
Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company, the Guarantor or any other obligor upon the
Securities or any Subsidiary of the Company or the Guarantor or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to act with respect to such Securities and that the pledgee is
not the Company, the Guarantor or any other obligor upon the Securities or any
Subsidiary of the Company, the Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Physical Security" has the meaning provided in Section 2.01.
"Place of Payment" means the place or places where the principal of
and any premium and interest on the Securities are payable as specified in
Section 2.02.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.07 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
6
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"Principal Subsidiary" means only Aetna Life Insurance Company, Aetna
Life Insurance and Annuity Company and Aetna U.S. Healthcare Inc., and any
other Subsidiary of the Guarantor which shall hereafter succeed by merger or
otherwise to a major part of the business of one or more of the Principal
Subsidiaries. The decision as to whether a Subsidiary shall have succeeded to a
major part of the business of one or more of the Principal Subsidiaries shall
be made in good faith by the Board of Directors of the Guarantor or a committee
thereof by the adoption of a resolution so stating, and the Guarantor shall
within 30 days of the date of the adoption of such resolution deliver to the
Trustee a copy thereof, certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Guarantor.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth in Section 2.04(a).
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date specified for that purpose in Section 2.02.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or
any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" has the meaning stated in the first recital of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.04.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.08.
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"Stated Maturity" shall mean, with respect to the principal of such
Security, August 6, 2002, and with respect to the interest of the Security,
August 15 and February 15 of each year.
"Subsidiary" of any Person means a corporation more than 50% of the
voting power of which is controlled, directly or indirectly, by such Person or
by one or more other Subsidiaries of such Person, or by such Person and one or
more other Subsidiaries of such Person. For the purposes of this definition,
"voting power" means the power to vote for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. Person" has the meaning provided in Regulation S.
"U.S. Government Obligation" has the meaning specified in
Section 11.04.
"Vice President", when used with respect to the Company, the Guarantor
or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company or the Guarantor to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantor,
as the case may be, shall furnish to the Trustee such certificates and opinions
as may be required under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer of the Company or the Guarantor, or an Opinion of Counsel, if to
be given by counsel and shall comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture. Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (excluding certificates provided for in Section
10.04) shall include
8
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(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which its
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor, as the case may be, stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the Company or
the Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate, opinion or representation by an accountant or firm
of accountants in the employ of the Company or the Guarantor, as the case may
be, unless such officer or counsel, as the case may be, knows, or in the
exercise of reasonable care should know, that the certificate, opinion or
representation with
9
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respect to such accounting matters upon which its certificate, statement or
opinion may be based is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
the Guarantor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 6.01) conclusive in favor
of the Trustee, the Company and the Guarantor, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Company or the Guarantor may fix any day as the record date
for the purpose of determining the Holders of Outstanding Securities entitled
to give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Outstanding Securities. If not set by the Company
or the Guarantor prior to the first solicitation of a Holder made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the
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most recent list of Holders required to be provided pursuant to Section 7.01)
prior to such first solicitation or vote, as the case may be.
(d) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
(e) With regard to any record date for action to be taken by the
Holders of Securities, only the Holders of Securities on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, the
Company or the Guarantor in reliance thereon, whether or not notation of such
action is made upon such Security.
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee, Company and Guarantor. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or by the Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company or the Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, in the case of the Company,
first-class postage prepaid, to the Company addressed to it at the address
of its principal office specified in the first paragraph of this
instrument, Attention: Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company, with a copy to the
Guarantor, and, in the case of the Guarantor, first-class postage prepaid
and addressed to it at the address of its principal office specified in
the first paragraph of this instrument, Attention: Treasurer, or at any
other address
11
<PAGE>
previously furnished in writing to the Trustee by the Guarantor, with a
copy to the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at its
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice; provided, however, that the Company, the Guarantor or
the Trustee, upon a good faith determination that mailing is in the
circumstances impractical, may give such notice by any other method which, in
the reasonable belief of the Company or the Guarantor or, in the case of the
Trustee, of the Company, the Guarantor and the Trustee, is likely to be
received by the Holders. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act. Regardless of whether
this Indenture is at any time qualified under the Trust Indenture Act or
required to be so qualified, this Indenture by its terms shall at all times be
subject to the Trust Indenture Act, the terms of which are incorporated by
reference in and made a part of this Indenture. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act, the latter
provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
12
<PAGE>
SECTION 1.09. Successors and Assigns. All covenants and agreements in
this Indenture by the Company or the Guarantor shall bind their successors and
assigns, whether so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this
Indenture or in the Securities or in the Guarantees shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in
the Securities or in the Guarantees, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities and the
Guarantees shall be governed by and construed in accordance with the laws of
the State of New York, but without regard to principles of conflicts of laws.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment
Date or Stated Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or of the Securities) payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or at the Stated Maturity,
provided that no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date or Stated Maturity, as the
case may be, except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such Interest
Payment Date or at the Stated Maturity, as the case may be.
SECTION 1.14. Personal Immunity from Liability for Incorporators,
Stockholders, Etc. No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Security, or for any claim
based thereon, or otherwise in respect of any Security or of the Guarantees, or
based on or in respect of this Indenture or any indenture supplemental hereto,
against any incorporator, or against any past, present or future stockholder,
director or officer, as such, of the Company or of any successor corporation,
or of the Guarantor or of any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being expressly waived and released
as a condition of, and as consideration for, the execution of this Indenture
and the issue of the Securities and the Guarantees.
13
<PAGE>
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities shall be in
substantially the form set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The Guarantees by the Guarantor to be endorsed on the Securities shall
be substantially in such form set forth in Section 2.06, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such Guarantees,
all as evidenced by such execution.
The definitive Securities and the Guarantees shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
The Securities shall be issued initially in the form of one or more
permanent global Securities in registered form, substantially in the form
provided in this Article (the "Global Security"), deposited with the Trustee,
as custodian for the Depositary duly executed by the Company and authenticated
by the Trustee as herein provided. In the event the Depositary is unable or
unwilling to provide its services as a depositary with respect to the
Securities and a successor depositary is not obtained, the Securities shall be
issued in the form of one or more permanent certificated Securities in
registered form, substantially in the form provided in this Article (the
"Physical Security") duly executed by the Company and authenticated by the
Trustee as herein provided. In the case of the Global Security, the aggregate
principal amount may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depositary or its
nominee, as hereinafter provided.
SECTION 2.02. Form of Face of Security.
14
<PAGE>
AETNA SERVICES, INC.
7.00% GUARANTEED SENIOR NOTES DUE 2002
No. ......... $
CUSIP No.:
AETNA SERVICES, INC., a Connecticut corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [Cede &
Co.]*, or registered assigns, the principal sum of ................
................... Dollars, as reduced from time to time by the principal
amount hereof that is transferred in the form of one or more Physical
Securities or beneficial interests in any other Global Security, and as
increased from time to time by the principal amount of any [Physical
Security]** [beneficial interest in any other Global Security]* that is
transferred or exchanged for a beneficial interest in this [Global]* Security;
[such reductions and increases to be noted by the Security Registrar on the
schedule attached hereto]* and to pay interest thereon from August 6, 1999 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on February 15 and August 15 in each year,
commencing August 15, 1999, at the rate of 7% per annum until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
is registered at the close of business on the Regular Record Date for such
interest, which shall be February 1 or August 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date (except in
the case of the August 15, 1999 Interest Payment Date for which the Regular
Record Date shall be August 6, 1999). Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to all Holders not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
- --------
* [Insert in a global note, only.]
** [Insert in a physical certificate, only.]
15
<PAGE>
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in Hartford, Connecticut, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Payment of interest, if any, in respect of this Security may also be
made, in the case of a Holder of at least U.S. $1,000,000 aggregate principal
amount of Securities, by wire transfer to a U.S. Dollar account maintained by
the Holder with a bank in the United States; provided that such Holder elects
payment by wire transfer by giving written notice to the Trustee or Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion). By so stating in such notice, the Holder may
elect to receive all future payments by wire transfer to such account until the
Trustee or Paying Agent is instructed otherwise, in a timely manner consistent
with the previous sentence, by a subsequent written notice from the then
Holder.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _________ __, 1999
AETNA SERVICES, INC.
By______________________________________
Name:
Title:
16
<PAGE>
[Seal]
Attest:
- --------------------------------------------
SECTION 2.03. Form of Reverse of Security. This Security is one of a
duly authorized issue of securities of the Company (herein called the
"Securities"), issued under an Indenture, dated as of August 5, 1999 (herein
called the "Indenture"), among the Company, as Issuer, Aetna Inc., as Guarantor
(herein called the "Guarantor") and State Street Bank and Trust Company of
Connecticut, National Association, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. Securities issued under the Indenture
are limited in aggregate principal amount to $500,000,000.
The Indenture contains provisions for defeasance at any time of (1)
the entire indebtedness of this Security or (2) certain restrictive covenants
and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, the principal of
the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders to be affected under
the Indenture at any time by the Company, the Guarantor and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all Securities,
to waive compliance by the Company or the Guarantor or both, with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
17
<PAGE>
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities and of
like tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name this Security
is registered as the owner hereof for all purposes, whether or not this
Security is overdue, and neither the Company, the Guarantor, the Trustee nor
any such agent shall be affected by notice to the contrary.
The Indenture provides that the Company and the Guarantor, at the
Company's option, (a) will be discharged from any and all obligations in
respect of the Securities (except for certain obligations to register the
transfer or exchange of Securities, replace stolen, lost or mutilated
Securities, maintain paying agencies and hold moneys for payment in trust) or
(b) need not comply with certain restrictive covenants of the Indenture, in
each case if the Company or the Guarantor deposits, in trust, with the Trustee
money or U.S. Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms will provide
money, in an amount sufficient to pay all
18
<PAGE>
the principal of, and (premium, if any) and interest on, the Securities on the
dates such payments are due in accordance with the terms of such Securities and
Guarantees, and certain other conditions are satisfied.
No recourse shall be had for the payment of the principal of (and
premium, if any) or interest on this Security, or for any claim based hereon,
or otherwise in respect hereof or of the Guarantee endorsed hereon, or based on
or in respect of the Indenture or any indenture supplemental thereto, against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, or of the Guarantor or
of any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise,
all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
19
<PAGE>
[FORM OF SCHEDULE ATTACHED TO GLOBAL NOTE]
<TABLE>
As Reduced By As Increased By
Beneficial Interests in Beneficial Interests in
this Global Security Another Global Security
Transferred or Transferred or
Exchanged For Exchanged for Beneficial
Beneficial Interests in Interests in this Global Date of
Principal Amount Another Global Security Security Transfer or Exchange
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
$[insert initial principal $ $
amount]
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
</TABLE>
SECTION 2.04. Restrictive Legends. (a) Each Security shall bear the
following legend on the face thereof except as otherwise provided in paragraph
(b):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THIS
LEGEND. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE ACQUIRER FOR THE BENEFIT OF THE ISSUER (i) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903
OR 904 UNDER THE SECURITIES ACT, AND (ii) AGREES THAT IT WILL NOT
OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY
BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE
20
<PAGE>
WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND ONLY (A) TO THE ISSUER OR AN AFFILIATE
THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME
EFFECTIVE UNDER THE SECURITIES ACT OR (C) (1) TO A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A UNDER THE SECURITIES ACT, (2) OUTSIDE THE UNITED STATES TO A NON-
U.S. PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT, UPON CERTIFICATION AS REQUIRED BY THE
INDENTURE, (3), UPON CERTIFICATION AS REQUIRED BY THE INDENTURE, TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITIES
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE) AND, IF SUCH TRANSFER
PURSUANT TO THIS CLAUSE (C)(3) IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SECURITIES LESS THAN $100,000, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT OR (4) PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF
ANY REGISTRATION STATEMENT OR ANY EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE SECURITY REGISTRAR WILL REFUSE
TO ACCEPT ANY REQUEST FOR THE REGISTRATION OF ANY TRANSFER THAT DOES
NOT COMPLY WITH THIS LEGEND.
(b) Upon written request therefor accompanied by an Opinion of
Counsel meeting the requirements of this paragraph, the Trustee shall exchange
any Security bearing the legend set forth in paragraph (a) for a Security of
like tenor and principal amount not bearing such legend. Any such exchange
shall be effected in accordance with Sections 3.04. Such Opinion of Counsel
shall be rendered by counsel reasonably acceptable to the Company, and shall
state that in such counsel's opinion, either (i) such Security is eligible for
resale under Rule
21
<PAGE>
144(k) under the Securities Act (or any successor provision) and further that
the legend set forth in paragraph (a) is not necessary to ensure that transfers
or other dispositions of such Security are effected in compliance with the
Securities Act and the rules and regulations thereunder or (ii) such Security
is being surrendered in connection with a transfer being made pursuant to a
registration statement that is effective under the Securities Act and therefore
the legend set forth in paragraph (a) may be removed.
(c) Each Global Security shall also bear the following legend on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE
A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
SECTION 2.05. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities referred to in the within-mentioned
Indenture.
22
<PAGE>
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
As Trustee
By
----------------------------------
Authorized Officer
SECTION 2.06. Form of Guarantee. Guarantees to be endorsed on the
Securities shall, subject to Section 2.01, be in substantially the form set
forth below; words enclosed in brackets shall be inserted, if applicable:
GUARANTEE
OF
AETNA INC.
Aetna Inc., a Connecticut corporation (herein called the "Guarantor",
which term includes any successor corporation under the Indenture referred to
in the Security upon which this Guarantee is endorsed), for value received,
hereby unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed the due and punctual payment of the principal of,
premium, if any, and interest on said Security, when and as the same shall
become due and payable, whether at the Stated Maturity or upon declaration of
acceleration or otherwise, according to the terms thereof and of the Indenture
referred to therein. In case of the failure of Aetna Services, Inc., a
Connecticut corporation (herein called the "Company", which term includes any
successor corporation under such Indenture) punctually to make any such payment
of principal, premium or interest, the Guarantor hereby agrees to pay or to
cause any such payment to be made punctually when and as the same shall become
due and payable, whether at Stated Maturity or upon declaration of acceleration
or otherwise, and as if such payment were made by the Company. The Guarantor
hereby agrees that its obligations hereunder shall be as if it were principal
debtor and not merely surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, the validity, legality or
enforceability of said Security or the Indenture, or the absence of any action
to enforce the same, or any waiver, modification, indulgence or consent granted
to the Company with respect thereto, by the Holder of said Security or by the
Trustee, the recovery of any judgment against the Company or any action to
enforce the same or any other circumstance that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor; provided,
however, that notwithstanding the foregoing, no such waiver,
23
<PAGE>
modification or indulgence shall, without the consent of the Guarantor,
increase the principal amount of said Security or the interest rate thereon.
The Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of bankruptcy of the Company, any right of
set-off or to counterclaim, any right to require a proceeding first against the
Company, protest or notice with respect to said Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by payment in full of the principal of, and
premium, if any, and interest on said Security.
The Guarantor shall be subrogated to all rights of the Holder against
the Company in respect of any amounts paid to such Holder by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the
Guarantor shall not, without the consent of all Holders of all the outstanding
Securities issued under the Indenture, be entitled to enforce, or to receive,
any payments arising out of or based upon such right of subrogation until the
principal of, premium, if any, and interest then due and payable on all the
Securities issued under the Indenture shall have been irrevocably paid in full
in accordance with the terms of the Securities.
This Guarantee is a guarantee of payment when due and not of
collection. This Guarantee shall continue to be effective, or be reinstated, as
the case may be, in respect of said Security if at any time payment, or any
part thereof, of said Security is rescinded or must otherwise be restored or
returned by the Holder of said Security or any trustee for said Holder upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Company or any other entity, or upon or as a result of the appointment of a
receiver, intervener or conservator of, or trustee or similar officer for, the
Company or any other entity or any substantial part of their respective
property, or otherwise, all as though such payments had not been made.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of the
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal of, and premium, if any, and interest on the Security upon
which this Guarantee is endorsed at the times, place and rate, and in the cash
or currency prescribed herein.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York, but without regard to principles of
conflicts of laws.
24
<PAGE>
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on said Security shall have been
manually signed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
IN WITNESS WHEREOF, Aetna Inc. has caused the execution hereof in
its corporate name by its duly authorized officers.
AETNA INC.
By
----------------------------------
Name:
Title:
[Seal]
Attest:
- ------------------------------------
[Assistant] Corporate Secretary
25
<PAGE>
ARTICLE 3
THE SECURITIES
SECTION 3.01. Amount Limited. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $500,000,000.
SECTION 3.02. Denominations. The Securities shall be issuable in
registered form in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman, its
President, a Vice Chairman, any Vice President, its Treasurer or Assistant
Treasurer, under its corporate seal reproduced thereon attested by its
Corporate Secretary or one of its Assistant Corporate Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile.
The Guarantees shall be executed on behalf of the Guarantor by its
Chairman, its President, a Vice Chairman, any Vice President, its Treasurer or
Assistant Treasurer, under its corporate seal reproduced thereon and attested
by its Corporate Secretary or one of its Assistant Corporate Secretaries. The
signature of any of these officers on the Guarantees may be manual or
facsimile.
The seal of the Company or the Guarantor, as the case may be, may be
in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Securities bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company or of the Guarantor shall bind the Company or the Guarantor, as the
case may be, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities. Minor
typographical and other minor errors in the text of any Security or the
Guarantee endorsed thereon or minor defects in the seal or facsimile signature
on any Security or the Guarantee endorsed thereon shall not affect the validity
or enforceability of such Security or such Guaranty if such Security has been
duly authenticated and delivered by the Trustee.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company and
having endorsed thereon Guarantees executed by the Guarantor to the Trustee for
authentication, together with a Company Order of the Company for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities having
such Guarantees endorsed thereon.
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The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors, executive committee, or a
trust committee of directors or responsible officers of the Trustee shall
determine that such action would expose the Trustee to personal liability to
existing Holders of Securities.
Each Security and the applicable Guarantee shall be dated the date of
its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and that such Security or Guarantee is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.10, for all purposes of this Indenture such Security and
the Guarantee endorsed thereon shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 3.04. Registration, Registration of Transfer and Exchange.
(a) Registered Global Form Only. The Securities will be issued in
registered form only. Except under the circumstances described in Section
3.05(b) below, the Securities will be issued in global form only.
(b) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it or the Trustee may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
(c) Upon surrender for registration of transfer of any Security at
the office or agency in a Place of Payment the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities, of any authorized
denominations and of a
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like aggregate principal amount and tenor which have endorsed thereon a
Guarantee duly executed by the Guarantor.
(d) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company and the
Guarantor, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
(e) Every Security presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
(f) No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company or the Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to this Section 3.04 or Section 9.05
not involving any transfer.
SECTION 3.05. Book-entry Provisions for Global Securities. (a) Each
Global Security shall (i) be registered in the name of the Depositary for such
Global Securities or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii), so long as The Depository
Trust Company is serving as the Depositary thereof, bear legends as set forth
in Section 2.04(c). Each Global Note will be delivered to the Trustee as
custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be
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transferred in accordance with the rules and procedures of the Depositary and
the provisions of Section 3.06. In addition, Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the Global Security, if and only if (i) the Depositary (A) notifies the
Company that it is unwilling or unable to continue as Depositary for the Global
Security and a successor depositary is not appointed by the Company within 90
days of such notice or (B) ceases to be a clearing agency registered under the
Exchange Act, (ii) an Event of Default of which the Trustee has actual notice
has occurred and is continuing and the Security Registrar has received a
request from the Depositary to issue such Physical Securities, (iii) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable and exchangeable, and such
transfers shall be registrable, or (iv) there shall exist such other
circumstances, if any, as have been specified for this purpose as contemplated
by Section 3.04. Notwithstanding any other provision in this Indenture, a
Global Security to which the restrictions set forth in this section shall have
ceased to apply may be transferred only to, and may be registered and exchanged
for Securities registered only in the name or names of, such Person or Persons
as the Depositary for such Global Security shall have directed and no transfer
thereof other than such a transfer may registered.
(c) Subject to the other requirements for transfer and exchange of
the Securities, a beneficial interest in any Global Security may be transferred
to a Person who takes delivery in the form of a beneficial interest in another
Global Security. In connection with any such transfer or exchange, the Security
Registrar shall record the corresponding decrease or increase in the aggregate
principal amount of each Global Security involved in any such transfer or
exchange, and the date of such transfer or exchange, on the schedule attached
to such Global Security. Any beneficial interest in one Global Security that is
transferred to a Person who takes delivery in the form of an interest in
another Global Security, or exchanged for an interest in another Global
Security, will, upon transfer or exchange, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer and exchange
restrictions, if any, and other procedures applicable to beneficial interests
in such other Global Security for as long as it remains such an interest. In
the event that a Physical Security is to be issued upon transfer of or in
exchange for a beneficial interest in a Global Security, the Company shall
execute, the Guarantor shall guarantee and the Trustee shall authenticate and
make available for delivery a new Physical Security in principal amount equal
to the principal amount of the beneficial interest in the Global Security being
transferred or exchanged.
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b) of this Section, the Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the
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Company shall execute, the Guarantor shall guarantee and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the Global Security an equal
aggregate principal amount of Physical Securities of authorized denominations.
(e) Any Physical Security delivered in exchange for an interest in
the Global Security pursuant to this Section shall bear the legend regarding
transfer restrictions applicable to the Physical Security set forth in Section
2.04.
(f) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 3.06. Special Transfer Provisions. The following provisions
shall apply to the Securities issued hereunder:
(a) Any Security that bears the Private Placement Legend, and any
beneficial interest therein, may be transferred only in compliance with the
terms of the Private Placement Legend. The Security Registrar shall not
register the transfer of any Security that bears the Private Placement Legend
unless:
(i) if the proposed transfer is being made in accordance with clause
(C)(2) or (3) of the Private Placement Legend, the Security Registrar
shall register the transfer only if such transfer is being made by a
proposed transferor who has provided it with a letter in the following
form:
State Street Bank and Trust Company of Connecticut,
National Association
225 Asylum Street, 29th floor
Goodwin Square
Hartford, Connecticut 06103
as Trustee and Security Registrar
Re: Aetna Services, Inc.'s 7% Guaranteed Senior Notes due 2002
----------------------------------------------------------
Reference is hereby made to the Indenture, dated as of August 5, 1999
(the "Indenture"), between Aetna Services, Inc. (the "Company") and the State
Street Bank and Trust Company of Connecticut, National Association, as Trustee
and Security Registrar. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
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This letter relates to US$___________ principal amount of Securities
which are evidenced by one or more [Physical Securities (Cusip No. ____,]
[Global Securities (CUSIP No. )] (the "Surrendered Securities") and [held
through DTC] [registered] in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such [Physical
Security] [beneficial interest in the Securities] to a Person who will take
delivery thereof in the form of an equal principal amount of Securities
evidenced by a [Global Security] [Physical Security].
In connection with such request and in respect of such Surrendered
Securities, the Transferor does hereby certify that:
[CHECK ONE]
[ ] (1) The Surrendered Securities are being transferred to a Person that the
Transferor reasonably believes is purchasing the Surrendered
Securities for its own account or for one or more accounts with
respect to which such Person exercises sole investment discretion,
and such Person and each such account is an institutional "accredited
investor" as described in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act and is purchasing such Surrendered Securities for
investment purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act
in a transaction in accordance with any applicable securities laws of
the United States or any state thereof. There is furnished herewith a
letter addressed to you from the institutional accredited investor as
required by the Indenture. If this letter relates to less than
$100,000 principal amount of Securities, there is also furnished
herewith an opinion of counsel reasonably acceptable to the Company
that the requested transfer is in compliance with the Securities Act.
or
[ ] the Surrendered Securities are being transferred pursuant to and in
accordance with Regulation S and:
(A) the offer of the Surrendered Securities was not made to a Person
in the United States;
(B) either:
(i) at the time the buy order was originated, the transferee
was outside the United States or
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the Transferor and any Person acting on its behalf
reasonably believed that the transferee was outside the
United States, or
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any Person acting on its behalf
knows that the transaction was prearranged with a buyer in
the United States;
(C) no directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Registration S, as
applicable; and
(D) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and may be produced in any judicial or
administrative proceeding.
[Insert Name of Transferor]
By
----------------------------------
Name:
Title:
Dated:
cc: Aetna Services, Inc.
and (ii) if the proposed transfer is being made in accordance with
Rule 144(k) under the Securities Act, the Securities Registrar shall
register the transfer only if there is delivered to the Trustee an opinion
of counsel as set forth in Section 2.04(b) regarding the removal of the
Private Placement Legend.
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(b) In addition to the other restrictions on transfer set forth in
this Indenture, transfers of Global Securities and beneficial interests therein
are subject to the rules and procedures of the Depositary and the Agent
Members.
(c) By its acceptance of any Security bearing the Private Placement
Legend, each Holder of such a Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture. The Security Registrar shall not register a
transfer of any Security unless such transfer complies with the restrictions on
transfer of such Security set forth in this Indenture. The Security Registrar
shall not be required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any certifications, legal opinions
or other information delivered to the Company, the Trustee or the Security
Registrar pursuant to Sections 2.04(b) or 3.06(a)(i).
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.04 or this Section
3.06. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Security Registrar.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities. If
there shall be delivered to the Company and the Trustee (i) a mutilated
Security, or (ii) evidence to their satisfaction of the destruction, loss or
theft of any Security and in either case such security or indemnity as may be
required by either of them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security and of like tenor
and principal amount having endorsed thereon a Guarantee duly executed by the
Guarantor, and bearing a number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
or the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company and the Guarantor, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.08. Payment of Interest; Interest Rights Preserved. Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to
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be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 15 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at its address as it appears
in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.09. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Guarantor, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person
in whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and (subject to
Section 3.08) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Guarantor, the Trustee nor any agent of the Company, the Guarantor or the
Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the
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Guarantor, the Trustee, and any agent of the Company, the Guarantor or the
Trustee as the owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall impair, as between a
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary as Holder of
any Security.
SECTION 3.10. Cancellation. All Securities surrendered for payment,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly canceled by
it. The Company or the Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order. Acquisition by the Company or the Guarantor of any Security shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Security unless and until the same is delivered to the Trustee for
cancellation.
SECTION 3.11. Computation of Interest. Interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months and,
for any period shorter than a full monthly period, shall be computed on the
basis of the actual number of days elapsed in such period.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for) with respect to the Securities and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(i) either
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(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.07 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company or
the Guarantor and thereafter repaid to the Company or the Guarantor
or discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year,
and the Company or the Guarantor, in the case of (i) or (ii) above,
has deposited or caused to be deposited with the Trustee in trust for
the purpose (A) money (in United States dollars) in an amount, or (B)
U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient
to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal
of (and premium, if any) and interest to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity, as the case may be;
(ii) the Company or the Guarantor has paid or caused to be paid
all other sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 6.07,
the obligations of the Trustee to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under
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Section 4.02 and the last paragraph of Section 10.03 shall survive until there
are no Securities Outstanding.
SECTION 4.02. Application of Trust Fund. Subject to provisions of the
last paragraph of Section 10.03, all amounts deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company or
the Guarantor acting as its own Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal and any premium and interest for
whose payment such funds have been deposited with the Trustee.
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default.
"Event of Default" whenever used with respect to Securities means any
one of the following events:
(1) Default in the payment of any instalment of interest upon
any of the Securities as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(2) Default in the payment of the principal of or premium, if
any, on any of the Securities as and when the same shall become due
and payable either at maturity, by declaration or otherwise; or
(3) Failure on the part of the Company or the Guarantor duly to
observe or perform in any material respect any other of the covenants
or agreements on the part of the Company or the Guarantor contained
in this Indenture and written notice of such failure, stating that
such notice is a "Notice of Default" hereunder, and requiring the
Company or the Guarantor, as the case may be, to remedy the same,
shall have been given by registered or certified mail, return receipt
requested, to the Company and the Guarantor by the Trustee, or to the
Company, the Guarantor and the Trustee by the holders of at least 25%
in aggregate principal amount of the Outstanding Securities, and such
failure shall have continued unremedied for a period of 90 days after
the date of the Company's and the Guarantor's receipt of such Notice
of Default; or
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(4) An event of default, as defined in any indenture or
instrument evidencing or under which the Company, the Guarantor or
any Principal Subsidiary shall have outstanding indebtedness for
borrowed money in a principal amount in excess of $50,000,000, shall
happen and be continuing and such indebtedness shall have been
accelerated so that the same shall be or become due and payable prior
to the date on which the same would otherwise have become due and
payable (other than acceleration of Non-Recourse Debt which does not
exceed in the aggregate 4% of the Guarantor's total shareholders'
equity, as set forth in the most recently published audited
consolidated balance sheet of the Guarantor) or the Company, the
Guarantor or any Principal Subsidiary shall default in the payment at
final maturity of outstanding indebtedness for borrowed money in a
principal amount in excess of $50,000,000 (other than default in
payment at final maturity of Non-Recourse Debt which does not exceed
in the aggregate 4% of the Guarantor's total shareholders' equity as
set forth in the most recently published audited consolidated balance
sheet of the Guarantor), and such acceleration or default at maturity
shall not be waived, rescinded or annulled within 30 days after
written notice thereof, stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company and the
Guarantor by the Trustee (if such event be known to it), or to the
Company, the Guarantor and the Trustee by the holders of at least 25%
in aggregate principal amount of the Outstanding Securities;
provided, however, that if such acceleration under such indenture or
instrument or default at maturity shall be remedied or cured by the
Company, the Guarantor or Principal Subsidiary, or waived, rescinded
or annulled by the requisite holders of such indebtedness, then the
Event of Default hereunder by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without further
action upon the part of either the Trustee or any of the Holders; and
provided further, that, subject to the provisions of Section 6.01,
the Trustee shall not be charged with knowledge of any such default
unless written notice thereof shall have been given to the Trustee by
the Company or the Guarantor, as the case may be, by the holder of
any such indebtedness or an agent of the holder of any such
indebtedness, by the trustee then acting under any such indenture or
other instrument under which such default shall have occurred, or by
the holders of at least 25% in aggregate principal amount of the
Outstanding Securities; or
(5) A decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company or the
Guarantor a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of the Company or the Guarantor under any applicable
Federal or State bankruptcy or similar law, and such decree or order
shall have continued undischarged
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and unstayed for a period of 90 days; or a decree or order of a court
having jurisdiction in the premises for the appointment of a
receiver, liquidator, trustee, assignee, sequestrator or similar
official in bankruptcy or insolvency of the Company or the Guarantor
or of all or substantially all of the Company's or the Guarantor's
property, or for the winding up or liquidation of the Company's or
the Guarantor's affairs, shall have been entered, and such decree or
order shall have continued undischarged and unstayed for a period of
90 days; or
(6) The Company or the Guarantor shall institute proceedings to
be adjudicated a voluntary bankrupt, or shall consent to the filing
of a bankruptcy proceeding against it, or shall file a petition or
answer or consent seeking reorganization, arrangement, adjustment or
composition under any applicable Federal or State bankruptcy or
similar law, or shall consent to the filing of any such petition, or
shall consent to the appointment of a receiver, liquidator, trustee,
assignee, sequestrator or similar official in bankruptcy or
insolvency of the Company or the Guarantor or of all or substantially
all of the Company's or the Guarantor's property, or shall make an
assignment for the benefit of creditors, or either the Company or the
Guarantor shall admit in writing its inability to pay its debts
generally as they become due and its willingness to be adjudged a
bankrupt, or corporate action shall be taken by the Company or the
Guarantor in furtherance of any of the aforesaid purposes.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 5.01, a record date shall automatically and without any other action by
any Person be set for the purpose of determining the holders of Outstanding
Securities entitled to join in such Notice of Default, which record date shall
be the close of business on the day the Trustee receives such Notice of
Default. The Holders of Outstanding Securities on such record date (or their
duly appointed agents), and only such Persons, shall be entitled to join in
such Notice of Default, whether or not such Holders remain Holders after such
record date; provided that, unless such Notice of Default shall have become
effective by virtue of Holders of at least 25% in principal amount of
Outstanding Securities on such record date (or their duly appointed agents)
having joined therein on or prior to the 90th day after such record date, such
Notice of Default shall automatically and without any action by any Person be
canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a Notice of Default contrary to or different
from, or, after the expiration of such period, identical to, a Notice of
Default that has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date in respect thereof shall be set
pursuant to this paragraph.
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SECTION 5.02. Acceleration of Maturity; Rescission Annulment.
If at any time an Event of Default with respect to Securities then
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities may declare the principal amount of all of the Securities to be due
and payable immediately, by a notice in writing to the Company and the
Guarantor (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) and all accrued
interest thereon shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding
Securities, by written notice to the Company, the Guarantor and the Trustee,
may rescind and annul such declaration and its consequences if
(i) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel except such costs and expenses as are
a result of negligence or bad faith on the part of the Trustee;
and
(ii) all Events of Default with respect to Securities, other than the
non-payment of the principal of and interest, if any, on the Securities
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such declaration, pursuant to this Section 5.02
with respect to Securities, a record date shall automatically and without any
other action by any Person be set for the purpose of determining the Holders of
Outstanding Securities entitled to join in such declaration, or rescission and
annulment, as the case may be, which record date shall be the close of business
on the day the Trustee receives such declaration, or rescission and annulment,
as the case may be. The Holders of Outstanding Securities on such record date
(or their duly appointed agents), and only such Persons, shall be entitled to
join in such declaration, or rescission and annulment, as the case may be,
whether or not such Holders remain Holders after such record date; provided
that, unless such declaration, or rescission and annulment, as the case may be,
shall have become effective by virtue of Holders of at least 25%, in the case
of any declaration of acceleration, or a majority, in the case of any
rescission or annulment, in principal amount of Outstanding Securities on such
record date (or their duly appointed agents) having joined therein on or prior
to the 90th day after such record date, such declaration, or rescission and
annulment, as the case may be, shall automatically and without any action by
any Person be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder (or a duly appointed agent thereof) from giving, before
or after the expiration of such 90-day period, a declaration of acceleration,
or a rescission and annulment of any such declaration, contrary to or different
from, or, after the expiration of such period, identical to, a declaration, or
rescission and annulment, as the case may be, that has been canceled pursuant
to the proviso to the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this paragraph.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such
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Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel except such costs and expenses, as are a
result of negligence or bad faith on the part of the Trustee. Until such demand
is made by the Trustee, the Company may pay the principal of and premium, if
any, and interest, if any, on the Securities to the Holders thereof, whether or
not the Securities are overdue.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company, the Guarantor or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company, the Guarantor or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, the
Guarantor or any other obligor upon the Securities or the property of the
Company, the Guarantor or such other obligor or their creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions that would be authorized by the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
such proceeding. In particular, the Trustee shall be authorized.
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities in accordance with the terms thereof and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
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compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.07 except such costs and
expenses, as are a result of negligence or bad faith on the part of the
Trustee.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel except such
costs and expenses, as are a result of negligence or bad faith on the part of
the Trustee, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or
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interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest,
respectively; and
THIRD: To the payment of the remainder, if any,
to the Company or any other Person lawfully
entitled thereto.
SECTION 5.07. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory in form and substance to the Trustee against the
costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
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it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section
3.08) any interest on such Security on the Stated Maturity or Maturities
expressed in such Security and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantor, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.07, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
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SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Subject to Section 5.07, every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction, a record date shall
be set for determining the Holders of Outstanding Securities entitled to join
in such direction, which record date shall be the close of business on the day
the Trustee receives such direction. The Holders of Outstanding Securities on
such record date (or their duly appointed agents), and only such Persons, shall
be entitled to join in such direction, whether or not such Holders remain
Holders after such record date; provided that, unless such direction shall have
become effective by virtue of Holders of at least a majority in principal
amount of Outstanding Securities on such record date (or their duly appointed
agents) having joined therein on or prior to the 90th day after such record
date, such direction shall automatically and without any action by any Person
be canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a direction contrary to or different from,
or, after the expiration of such period, identical to, a direction that has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date in respect thereof shall be set pursuant to this paragraph.
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SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
The Company or the Guarantor may, but shall not be obligated to,
establish a record date for the purpose of determining the Persons entitled to
waive any past default hereunder. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any default hereunder, whether or not such Holders
remain Holders after such record date; provided, however, that unless such
Holders of not less than a majority in principal amount of the Outstanding
Securities shall have waived such default prior to the date which is 90 days
after such record date, any such waiver previously given shall automatically
and without further action by any Holder be canceled and of no effect.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or the Guarantor.
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ARTICLE 6
THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived) the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent person would exercise
or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default of which the
Trustee has actual notice and after the curing or waiving of all such Events of
Default which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
Officer's Certificates or other certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the
case of any such statements, Officer's Certificates or other certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
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(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the holders of not less than a majority in principal amount of the Securities
at the time outstanding relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that the repayment of
such funds or adequate indemnity against such liability is not reasonably
assured to it.
SECTION 6.02. Notice of Defaults. If a default occurs hereunder with
respect to the Securities, the Trustee shall give the Holder of the Securities
notice of such default as and to the extent provided by the Trust Indenture Act
for indentures qualified thereunder, provided, however, that in the case of any
default of the character specified in Section 5.01(3) with respect to the
Securities, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to the Securities.
SECTION 6.03. Certain Rights of Trustee.
Subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors of the Company
or the Guarantor may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
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other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory in form and substance to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) prior to the occurrence of an Event of Default and after the
remedy or waiver of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall upon reasonable notice to
the Company and the Guarantor be entitled to examine the books, records
and premises of the Company and the Guarantor, personally or by agent or
attorney at a time and place acceptable to the Company or the Guarantor,
as the case may be; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company or the Guarantor, as the case may be, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or of the Guarantees. The Trustee or any
Authenticating Agent shall
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not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company or the Guarantor with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor, as the case may be.
SECTION 6.07. Compensation and Reimbursement.
The Company and the Guarantor agree
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its written request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation, and reasonable expenses and disbursements of its agents and
outside counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the reasonable
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
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SECTION 6.08. Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 or is a subsidiary
of a corporation which shall be a Person that has a combined capital and
surplus of at least $50,000,000 and which unconditionally guarantees the
obligations of the Trustee hereunder. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company and the Guarantor. If the instrument of acceptance by a
successor Trustee required by Section 6.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or the Guarantor or by any
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Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or the
Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees (it being understood that at any time there shall be only one Trustee)
and shall comply with the applicable requirements of Section 6.11. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the Guarantor and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee and to that extent supersede the successor Trustee appointed
by the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
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SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee,
every such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company, to the Guarantor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company, the Guarantor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee, the
Company, the Guarantor, the retiring Trustee and each successor Trustee shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer the rights, powers,
trust and duties of the retiring Trustee to which the appointment of such
successor Trustee relates and (2) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company and the Guarantor or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee.
(c) Upon request of any such successor Trustee, the Company and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraphs(a) and (b) of this Section, as the case may
be.
(d) No successor shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company or
Guarantor. If and when the Trustee shall be or become a creditor of the
Company, the Guarantor or any other obligor upon the Securities, the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company, the Guarantor or any such other
obligor.
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may with the consent of the Company appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate the Securities issued upon original issue and upon
exchange or registration of transfer or pursuant to Section 3.07, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus
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of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee or the Company
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company or the
Trustee, as the case may be. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall mail written notice of such appointment by first-class
mail, postage prepaid, to all Holders, as their names and addresses appear in
the Security Register. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within-mentioned
Indenture.
---------------------------------------
As Trustee
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By:
---------------------------------------
As Authenticating Agent
By:
---------------------------------------
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 7.01. Company and Guarantor to Furnish Trustee Names and
Addresses of Holders.
The Company and the Guarantor will furnish or cause to be furnished to
the Trustee
(a) semi-annually, not later than 10 days after each Regular Record
Date in each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of the preceding Regular Record
Date, and
(b) at such other times as the Trustee may request in writing ,
within 30 days after the receipt by the Company or the Guarantor of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. Preservation of Information; Communication to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder, by receiving and holding the same, agrees with the
Company, the Guarantor and the Trustee that none of the Company, the Guarantor,
the Trustee or any agent of any of them shall be held accountable by
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reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
To the extent that any such report is required by the Trust Indenture Act with
respect to any 12 month period, such report shall cover the 12 month period
ending May 15 and shall be transmitted by the next succeeding July 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company and
the Guarantor. The Company will notify the Trustee when any Securities are
listed on any stock exchange.
SECTION 7.04. Reports by Company and Guarantor.
The Company and the Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
ARTICLE 8
CONSOLIDATION, MERGER, OR SALE OF ASSETS
SECTION 8.01. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms.
Neither the Company nor the Guarantor shall consolidate with or merge
into any other Person or sell its properties and assets as, or substantially
as, an entirety to any Person, and neither the Company nor the Guarantor shall
permit any Person to consolidate with or merge into the Company or the
Guarantor, as the case may be, unless:
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(1) in case the Company or the Guarantor, as the case may be, shall
consolidate with or merge into another Person (including, without
limitation, the Guarantor or the Company, as the case may be), or sell its
properties and assets as, or substantially as, an entirety to any Person
(including, without limitation, the Guarantor or the Company, as the case
may be), the Person formed by such consolidation or into which the Company
or the Guarantor, as the case may be, is merged or the Person which
purchases the properties and assets of the Company or the Guarantor, as
the case may be, as, or substantially, as an entirety shall be a
corporation, partnership or trust, shall be organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, in the case of any such transaction involving the
Company, the due and punctual payment of the principal of and any premium
and interest on all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company to be
performed or observed, and, in the case of any such transaction involving
the Guarantor, the due and punctual performance of the Guarantees and the
performance or observance of every covenant of this Indenture on the part
of the Guarantor to be performed or observed, in each case by supplemental
indenture satisfactory in form to the Trustee, executed and delivered to
the Trustee, by the Person (if other than the Company or the Guarantor, as
the case may be) formed by such consolidation or into which the Company or
the Guarantor, as the case may be, shall have been merged or by the
corporation which shall have acquired the assets of the Company or the
Guarantor, as the case may be;
(2) immediately after giving effect to such transaction, no Event of
Default shall have happened and be continuing; and
(3) the Company or the Guarantor, as the case may be, has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, or sale and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 8.02. Successor Substituted.
Upon any consolidation of the Company or the Guarantor, as the case
may be, with, or merger of the Company or the Guarantor, as the case may be,
into, any other Person or any sale of the properties and assets of the Company
or the Guarantor, as the case may be, as, or substantially as, an entirety in
accordance
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with Section 8.01, the successor Person formed by such consolidation or into
which the Company or the Guarantor, as the case may be, is merged or to which
such sale is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company or the Guarantor, as the case may be,
under this Indenture with the same effect as if such successor Person had been
named as the Company or the Guarantor, as the case may be, herein, and
thereafter the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities or the Guarantees, as the
case may be.
SECTION 8.03. Assumption by Guarantor or Subsidiary of Company's
Obligations.
The Guarantor or any Subsidiary of the Guarantor may, where permitted
by law, assume the obligations of the Company (or any Person which shall have
previously assumed the obligations of the Company) for the due and punctual
payment of the principal of (and any premium), interest on and any other
payments with respect to the Securities and the performance of every covenant
of this Indenture and the Securities on the part of the Company (or such other
Person) to be performed or observed, provided that:
(1) the Guarantor or such Subsidiary, as the case may be, shall
expressly assume such obligations by an indenture supplemental hereto, in
form reasonably satisfactory to the Trustee, executed and delivered to the
Trustee and if such Subsidiary assumed such obligations, the Guarantor
shall, by such supplemental indenture, confirm that its Guarantees shall
apply to such Subsidiary's obligations under the Securities and this
Indenture, as modified by such supplemental indenture;
(2) immediately after giving effect to such transaction, no Event of
Default shall have occurred and be continuing; and
(3) the Guarantor or such Subsidiary, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such assumption and such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
(4) such assumption shall not result in adverse tax consequences to
any Holder; and
(5) the Guarantor and/or such Subsidiary shall have delivered to the
Trustee an Opinion of Counsel to the effect that (1) the Securities are
legal, valid and binding obligations of the assuming corporation
enforceable against the assuming corporation in accordance with their
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terms subject to (a) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors rights generally and the rights of
creditors of insurance companies generally and (b) general principles of
equity (regardless of whether considered in a proceeding at law or in
equity) and (2) if a Subsidiary of the Guarantor is the assuming
corporation, the Guarantees continue to be the legal, valid and binding
obligations of the Guarantor enforceable against the Guarantor in
accordance with their terms subject to (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other similar laws now
or hereafter in effect relating to or affecting creditors rights generally
and the rights of creditors of insurance companies generally and (b)
general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
Upon any such assumption, the Guarantor or such Subsidiary shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if the Guarantor or
such Subsidiary, as the case may be, had been named as the "Company" herein,
and the Person named as the "Company" in the first paragraph of this instrument
or any successor Person which shall theretofore have become such in the manner
prescribed in this Article shall be released from its liability as obligor upon
the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or
the Guarantor and the assumption by any such successor of the covenants of
the Company or the Guarantor herein and in the Securities or Guarantees;
or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of all of the Holders or to surrender any right or power herein
conferred upon the Company or the Guarantor; or
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(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture, including, without limitation, with respect to any of the
provisions in Article Twelve, provided that any such addition, change or
elimination (i) shall neither (A) apply to any Security created prior to
the execution of such supplemental indenture and entitled to the benefit
of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective
only when there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
10.05, or to otherwise secure the Securities or the Guarantees; or
(7) to establish the form or terms of Securities or the form of
Guarantees as permitted by Section 2.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee, pursuant to the requirements of Section
6.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause
(9) shall not adversely affect the interests of the Holders in any
material respect; or
(10) to conform to any mandatory provisions of law.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority of
principal amount of the Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company, the Guarantor and
the Trustee, the Company and the Guarantor, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any
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of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, or change any
Place of Payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 9.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 9.07, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.01(8), or
(4) modify or affect in any manner adverse to the interests of the
Holders of any Securities the terms and conditions of the obligations of
the Guarantor in respect of the due and punctual payment of the principal
thereof, premium, if any, and interest, if any, thereon or any sinking
fund payments provided in respect thereof.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of
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the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company and the Guarantor
shall so determine, new Securities so modified as to conform, in the opinion of
the Trustee, the Company and the Guarantor, to any such supplemental indenture
may be prepared and executed by the Company, the Guarantees endorsed thereon
may be executed by the Guarantor and such Securities may be authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
SECTION 9.06. Conformity with the Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 9.07. Waiver of Compliance by Holders.
Anything in this Indenture to the contrary notwithstanding, any of the
acts which the Company or the Guarantor is required to do, or is prohibited
from doing, by any of the provisions of this Indenture may, to the extent that
such provisions might be changed or eliminated by a supplemental indenture
pursuant to Section 9.02 upon consent of holders of not less than a majority in
aggregate principal amount of the then Outstanding Securities affected, be
omitted or done by the Company or the Guarantor, as the case may be, if there
is obtained the prior consent or waiver of the holders of at least a majority
in aggregate principal amount of the then Outstanding Securities.
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ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay
or cause to be paid the principal of and any premium and interest on the
Securities in accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency by Company and
Guarantor.
(a) So long as any Securities are Outstanding, the Company will
maintain in each Place of Payment an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange, and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
(b) So long as any Securities are Outstanding, the Guarantor will
maintain in each Place of Payment an office or agency where Securities may be
presented or surrendered for payment under the Guarantees endorsed thereon and
where notices and demands to or upon the Guarantor in respect of the Guarantees
endorsed on the Securities and this Indenture may be served. The Guarantor will
give prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Guarantor shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Guarantor
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hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Guarantor may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
such purpose or where such notices or demands may be served and may from time
to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Guarantor of its obligation to
maintain an office or agency in each Place of Payment for such purposes. The
Guarantor will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 10.03. Money for Securities Payments to Be Held in Trust.
If the Company or the Guarantor shall at any time act as its own
Paying Agent, it will, on or before each due date of the principal of or any
premium or interest on any of the Securities, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal and any premium and interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or any premium or interest, deposit
with a Paying Agent a sum sufficient to pay such amount, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will, during the continuance of any default by the Company
(or any other obligor upon the Securities) in the making of any payment in
respect of the Securities, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
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Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company or the Guarantor, in trust for the payment of the principal of
or any premium or interest on any Security and remaining unclaimed for two
years after such principal, premium or interest has become due and payable
shall be paid to the Company or the Guarantor, as the case may be, on Company
Request, or (if then held by the Company or the Guarantor) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company or the Guarantor for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company or the Guarantor
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, the City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company or
the Guarantor, as the case may be.
SECTION 10.04. Statement by Officers as to Default.
The Company and the Guarantor will each deliver to the Trustee within
120 days after the end of each fiscal year of the Guarantor ending after the
date hereof, a certificate signed by the Company's or the Guarantor's, as the
case may be, principal executive officer, principal financial officer or
principal accounting officer and an additional authorized signatory stating
whether or not to the best knowledge of the signers thereof the Company or the
Guarantor, as the case may be, is in compliance with all terms, conditions and
covenants of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and if the signers has obtained
knowledge of any continuing default by the Company or the Guarantor in the
performance, observation or fulfillment of any such term, condition or
covenant, specifying each such default and the nature thereof.
SECTION 10.05. Limitations on Liens on Common Stock of Principal
Subsidiaries.
As long as any of the Securities remains outstanding, the Guarantor
will not, and will not permit any Principal Subsidiary to, issue, assume, incur
or guarantee any indebtedness for borrowed money secured by a mortgage, pledge,
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lien or other encumbrance, directly or indirectly, on any of the Common Stock
of a Principal Subsidiary, which Common Stock is owned by the Guarantor, by the
Company or by any Principal Subsidiary, unless the obligations of the Company
under the Securities and, if the Company or the Guarantor so elects, any other
indebtedness of the Company or the Guarantor ranking on a parity with or prior
to the Securities or the Guarantor's obligations under the Guarantees, as the
case may be, shall be secured equally and ratably with, or prior to, such
secured indebtedness for borrowed money so long as it is outstanding and is so
secured.
SECTION 10.06. Rule 144A Information.
At any time when the Guarantor is not subject to Section 13 or 15(d)
of the Exchange Act, upon the request of a holder of a Security or beneficial
interest in a Global Security, the Guarantor shall promptly furnish or cause to
be furnished "Rule 144A Information" (as defined below) to such holder, or to a
prospective purchaser of such Security or interest designated by such holder,
in order to permit compliance by such holder with Rule 144A under the
Securities Act in connection with the resale of such Security by such holder.
"Rule 144A Information" shall be such information as is specified pursuant to
paragraph (d)(4) of Rule 144A (or any successor provision thereto), as such
provisions (or successor provision) may be amended from time to time.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at any time, to have either Section 11.02 or
Section 11.03 applied to the Outstanding Securities and the Guarantees endorsed
thereon, upon compliance with the conditions set forth below in this Article
Eleven.
SECTION 11.02. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 11.01 to
have this Section 11.02 applied to the Outstanding Securities and the
Guarantees endorsed thereon, the Company and the Guarantor shall each be deemed
to have been discharged from its obligations with respect to the Outstanding
Securities and the Guarantees endorsed thereon as provided in this Section on
and after the date the conditions set forth in Section 11.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities and the
Guarantees endorsed thereon
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and to have satisfied all their other obligations under the Securities, the
Guarantees endorsed thereon and this Indenture insofar as the Securities and
the Guarantees endorsed thereon are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same),
subject to the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of Securities to receive,
solely from the trust fund described in Section 11.04 and as more fully set
forth in such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due, (2) the Company's or the
Guarantor's obligations, as the case may be, with respect to the Securities
under Sections 3.04, 3.07, 10.02 and 10.03, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder, including, without limitation,
its rights under Section 6.07 and (4) this Article Eleven. Subject to
compliance with this Article Eleven, the Company may exercise its option
provided in Section 11.01 to have this Section 11.02 applied to the Outstanding
Securities and the Guarantees endorsed thereon notwithstanding the prior
exercise of its option provided in Section 11.01 to have Section 11.03 applied
to the Outstanding Securities and the Guarantees endorsed thereon.
SECTION 11.03. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 11.01 to
have this Section 11.03 applied to the Outstanding Securities and the
Guarantees endorsed thereon, (1) the Guarantor shall be released from its
obligations under Section 10.05 and the Company and the Guarantor shall be
released from their obligations under Section 8.01 and (2) the occurrence of
any event specified in Sections 5.01(2), 5.01(3) (with respect to Section 10.05
and Section 8.01) and 5.01(4) shall be deemed not to be or result in an Event
of Default, in each case with respect to the Outstanding Securities as provided
in this Section on and after the date the conditions set forth in Section 11.04
are satisfied (hereinafter called "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that the Company and the Guarantor may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 5.01(4)), whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities shall be
unaffected thereby.
SECTION 11.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
11.02 or Section 11.03 to the Outstanding Securities:
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(1) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that satisfies
the requirements contemplated by Section 6.09 and agrees to comply with
the provisions of this Article Eleven applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities, (i) money in an amount, or (ii) U.S.
Government Obligations that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (iii) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on the Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and the
Securities. As used herein, (1) "U.S. Government Obligation" means (x) any
security that is (i) a direct obligation of the United States of America
for the payment of which full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality for the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which,
in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any specific payment of principal of or interest
on any such U.S. Government Obligation specified in Clause (x) and held by
such custodian for the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of or interest on any
such U.S. Government Obligation, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the Holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary
receipt.
(2) In the case of an election under Section 11.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to the Securities and will be
subject to Federal income tax on the same amount, in the same manner and
at the
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same times as would be the case if such deposit, Defeasance and discharge
were not to occur.
(3) In the case of an election under Section 11.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holder of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as result of the deposit and Covenant
Defeasance to be effected with respect to the Securities and will be
subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 5.01(5) and 5.01(6), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
after such 90th day).
(6) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
(7) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such
trust shall be qualified under such Act or exempt from regulation
thereunder.
SECTION 11.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 11.06, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 11.04 in respect
of the Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of the
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Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company or the Guarantor acting as its own
Paying Agent) as the Trustee may determine, to the Holders of Securities, of
all sums due and to become due thereon in respect of principal and any premium
and interest, but money so held in trust need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge that by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article Eleven to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company or the Guarantor, as the case may
be, from time to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 11.04 that, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Defeasance or Covenant Defeasance with respect to the Securities and
the Guarantees endorsed thereon.
SECTION 11.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Eleven with respect to the Securities by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's and
the Guarantor's obligations under this Indenture and the Securities and the
Guarantees endorsed thereon shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Eleven with respect to the
Securities until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 11.05 with respect to the
Securities in accordance with this Article Eleven; provided, however, that if
the Company makes any payment of principal of or any premium or interest on any
Security following the reinstatement of its obligations or if the Guarantor
makes any payment in respect thereof pursuant to its Guarantee of such
Securities, the Company or the Guarantor, as the case may be, shall be
subrogated to the rights of the Holders to receive such payment from the money
so held in trust.
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ARTICLE 12
GUARANTEE OF SECURITIES
SECTION 12.01. Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security of the Company authenticated and delivered by the Trustee or an
Authenticating Agent the due and punctual payment of the principal of (premium,
if any) and interest on such Security, when and as the same shall become due
and payable, whether at Stated Maturity, by declaration of acceleration or
otherwise according to the terms of such Security and of this Indenture (the
"Guaranteed Obligations"). In case of default by the Company in the payment of
any such principal, premium or interest, the Guarantor agrees duly and
punctually to make any such payment when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration or
otherwise, and as if such payment were made by the Company. The Guarantor
hereby agrees that its obligations hereunder shall be as if it were principal
debtor and not merely surety, and shall be absolute and unconditional
irrespective of, and shall be unaffected by, the validity, legality or
enforceability of any Security or this Indenture, the absence of any action to
enforce the same or any waiver, modification or indulgence or consent granted
to the Company with respect thereto by the Holder or the Trustee, the recovery
of any judgment against the Company or any action to enforce the same, or any
other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor; provided, however, that notwithstanding the
foregoing, no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of a Security or the
interest rate thereon. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right of set-off or counterclaim, any right to
require a proceeding first against the Company, protect or notice with respect
to any Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged as to any
Security except by payment in full of the principal of (premium, if any) and
interest on such Security.
SECTION 12.02. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of a
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however,
that the Guarantor shall not, without the consent of all Holders, be entitled
to enforce, or to receive, any payments arising out of or based upon, such
right of subrogation until the principal of (and premium, if any) and interest
then due and payable on
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all Securities shall have been irrevocably paid in full in accordance with the
terms of such Securities.
SECTION 12.03. Reinstatement.
The Guarantee of the Guarantor is a guarantee of payment when due and
not of collection. The Guarantee shall continue to be effective, or be
reinstated, as the case may be, in respect of any Security if at any time
payment, or any part thereof, of such Security is rescinded or must otherwise
be restored or returned by the Holder of such Security or any trustee for said
Holder upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or any other entity, or upon or as a result of
the appointment of a receiver, intervener or conservator of, or trustee or
similar officer for, the Company or any other entity or any substantial part of
their respective property, or otherwise, all as though such payments had not
been made.
SECTION 12.04. Execution and Delivery of Guarantees.
To evidence its guarantee set forth in Section 12.01, the Guarantor
hereby agrees to execute, subject to Section 2.01, the Guarantee in a form
established pursuant to Section 2.06, to be endorsed on each Security
authenticated and delivered by the Trustee. Each such Guarantee shall be
executed by the Guarantor as provided in Section 3.03.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
AETNA SERVICES, INC.
By: /s/ Alfred P. Quirk, Jr.
--------------------------------
Name: Alfred P. Quirk, Jr.
Title: Vice President, Finance
and Treasurer
[Seal]
Attest:
/s/ William J. Casazza
- ---------------------------------
AETNA INC.
By: /s/ Alfred P. Quirk, Jr.
--------------------------------
Name: Alfred P. Quirk, Jr.
Title: Vice President, Finance
and Treasurer
[Seal]
Attest:
/s/ William J. Casazza
- ---------------------------------
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STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, AS TRUSTEE
By: /s/ Earl W. Dennison, Jr.
--------------------------------
Name: Earl W. Dennison, Jr.
Title: Vice President
[Seal]
Attest:
/s/ Donald E. Smith
- ---------------------------------
Vice President
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APPENDIX A
FORM OF INSTITUTIONAL ACCREDITED INVESTOR LETTER
[Date]
[Insert name and address of Transferor]
State Street Bank and Trust Company
of Connecticut, National Association
225 Asylum Street, 29th Floor
Goodwin Square
Hartford, Connecticut 06103
as Trustee and Security Registrar
Re: Aetna Services Inc.'s 7.00% Guaranteed Senior Notes due 2002
Dear Sirs:
In connection with our proposed purchase of 7.00% Guaranteed Senior
Notes due 2002 (the "notes") of Aetna Services, Inc. (the "Issuer"), we confirm
that:
1. We understand that any subsequent transfer of the notes is
subject to certain restrictions and conditions set forth in the
Indenture relating to the notes and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the
notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the
"Act") .
2. We understand that the offer and sale of the notes have not been
registered under the Securities Act of 1933, and that the notes
may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if
we should sell any notes, we will do so only (A) to the Issuer
or any of its affiliates, (B) pursuant to a registration
statement that has become effective under the Act, (C) in
accordance with Rule 144A under the Act to a "qualified
institutional buyer" (as defined therein), (D) outside the
United States in accordance with Rule 904 of Regulation S under
the Act (upon certification as required by the Indenture), (E)
upon certification as required by the Indenture to an
institutional "accredited investor" (as defined below) that,
prior to such transfer, furnishes you a signed letter containing
the same representations and agreements relating to the
restrictions on
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transfer of the notes as those contained herein, and, if the
transfer is in respect of notes with an aggregate principal
amount less than $100,000, an opinion of counsel reasonably
acceptable to the Issuer that such transfer is in compliance
with the Act or (F) pursuant to the exemption from registration
provided by Rule l44 under the Act (if available), and we
further agree to provide to any person purchasing any of the
notes from us a notice advising such purchaser that resales of
the notes are restricted as stated herein.
3. We understand that, on any proposed resale of any notes, we will
be required to furnish to the Issuer and the Trustee such
certifications, legal opinions and other information as the
Issuer or the Trustee may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We
further understand that the notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act of 1933) and have such knowledge and experience
in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the notes, and we and
any accounts for which we are acting are each able to bear the
economic risks of our or their investment.
5. We are acquiring the notes purchased by us for our own account
or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole
investment discretion.
Each of the Issuer, the Guarantor (as defined in the Indenture) and
the Trustee are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By:
--------------------------------
Name:
Title:
[Seal]
Attest:
- ---------------------------------
A-2
