AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 16, 1995
REGISTRATION NO. 33--
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
DEPOSIT GUARANTY CORP.
(Exact name of registrant as specified in its charter)
MISSISSIPPI 64-0472169
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
210 East Capitol Street
Post Office Box 730
Jackson, Mississippi 39205
Telephone Number: (601) 354-8497
(Address, including zip code, and telephone number, including area
code of registrant's principal executive offices)
Arlen L. McDonald
Deposit Guaranty Corp.
210 East Capitol Street
Post Office Box 730
Jackson, Mississippi 39205
Telephone Number: (601) 354-8497
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________________
Copies to:
Keith Parsons, Esq. William S. Rubenstein, Esq.
Watkins Ludlam & Stennis Skadden, Arps, Slate,
633 North State Street Meagher & Flom
Jackson, Mississippi 39205 919 Third Avenue
Telephone Number: (601) 949-4701 New York, New York 10022
Telephone Number: (212) 735-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
________________________
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering.( )______________.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.( )______________.
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.( )
CALCULATION OF REGISTRATION FEE
PROPOSED
MAXIMUM
TITLE OF EACH CLASS PROPOSED MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED(1) REGISTERED(2) PER UNIT(3) PRICE(4) FEE
++ ++ ++
Debt Securities + + +
. . . . . . . + + +
Debt Warrants + + +
. . . . . . . + + +
Preferred Stock, + + +
no par value . + + +
. . . . . . . + + +
Depositary Shares + + +
. . . . . . . + + +
Preferred Stock + + +
Warrants + $300,000,000 ++ $300,000,000 + $60,000
. . . . . . . +
Depositary Share + + +
Warrants . + + +
. . . . . . . + + +
Common Stock, no + + +
par value. . . . + + +
Common Stock
Warrants + + +
. . . . . . . + + +
. . . . . . . ++ ++ ++
(1) The securities registered hereunder may be sold separately,
together, or as units with other securities registered hereunder.
(2) In no event will the aggregate initial offering price of the Debt
Securities, Debt Warrants, Preferred Stock, Preferred Stock
Warrants, Depositary Shares, Depositary Share Warrants, Common
Stock and Common Stock Warrants, issued under this Registration
Statement and in the case of Warrants for which separate
consideration is payable upon issuance of underlying securities,
securities issued upon exercise of Warrants, exceed $300,000,000
or the equivalent thereof in one or more foreign currencies or
units of one or more foreign currencies or composite currencies
(such as European Currency Units). The aggregate amount of
Common Stock registered hereunder is further limited to that
which is permissible under Rule 415(a)(4) under the Securities
Act. If any securities are issued at an original issue discount,
then additional securities may be issued as long as the aggregate
initial offering price of all such securities, together with the
initial offering price of all other securities registered
hereunder, does not exceed $300,000,000.
(3) The proposed maximum offering price per unit will be determined
from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
(4) No separate consideration will be received for (i) Common Stock
that is issued upon conversion at the option of a holder of Debt
Securities, Preferred Stock, or Depositary Shares or securities
that are issued upon conversion at the option of the Corporation
of Debt Securities, Preferred Stock, or Depositary Shares. The
proposed maximum aggregate offering price has been estimated
solely for the purpose of computing the registration fee pursuant
to Rule 457 of the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE
SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS
TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN
ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION DATED NOVEMBER 16, 1995
PROSPECTUS
Depositary Guaranty Corp.
$300,000,000
DEBT SECURITIES DEBT WARRANTS
PREFERRED STOCK PREFERRED STOCK WARRANTS
DEPOSITARY SHARES DEPOSITARY SHARE WARRANTS
COMMON STOCK COMMON STOCK WARRANTS
Deposit Guaranty Corp., a Mississippi business
corporation (the "Corporation"), intends to issue from time
to time, either separately or together, (i) one or more
series of its unsecured debt securities, which may be either
senior debentures, notes, bonds, and/or other evidences of
indebtedness (the "Senior Debt Securities") or subordinated
debentures, notes, bonds, and/or other evidences of
indebtedness which may be convertible at the option of a
holder or the Corporation into Equity Securities (as
described herein) of the Corporation (the "Subordinated Debt
Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), (ii) warrants to purchase Debt
Securities (the "Debt Warrants"), (iii) shares of Preferred
Stock, no par value (the "Preferred Stock"), which may be
convertible, at the option of the holder, into Common Stock
or any other class or series of Equity Securities of the
Corporation or convertible at the option of the Corporation
into Equity Securities or other debt securities of the
Corporation, (iv) shares of Preferred Stock represented by
depositary shares ("Depositary Shares"), (v) warrants to
purchase shares of Preferred Stock (the "Preferred Stock
Warrants"), (vi) warrants to purchase Depositary Shares (the
"Depositary Share Warrants"), (vii) Common Stock, no par
value (the "Common Stock" and, together with the Preferred
Stock or Depositary Shares representing Preferred Stock, the
"Equity Securities"), and (viii) warrants to purchase Common
Stock (the "Common Stock Warrants," and together with the
Debt Warrants, the Preferred Stock Warrants, and the
Depositary Share Warrants, being collectively referred to
herein as the "Securities Warrants") in amounts, at prices,
and on terms to be determined at the time of the offering.
The Debt Securities, Securities Warrants, Preferred Stock,
Depositary Shares and Common Stock offered hereby are
collectively referred to herein as the "Securities."
The Securities offered pursuant to this Prospectus
may be offered separately or together in one or more series
up to an aggregate initial public offering price of
$300,000,000 or the equivalent thereof in one or more
foreign currencies or units of one or more foreign
currencies or composite currencies (such as European
Currency Units), at individual prices and on terms to be set
forth in one or more supplements to this Prospectus (each, a
"Prospectus Supplement"). The particular terms of the
Securities offered by any Prospectus Supplement will be
described in the Prospectus Supplement relating to such
Securities (an "Applicable Prospectus Supplement").
The Senior Debt Securities, when issued, will rank
equally with all other unsubordinated and unsecured
indebtedness of the Corporation. The Subordinated Debt
Securities, when issued, will be subordinate to all existing
and future obligations of the Corporation to its other
creditors, except obligations ranking on a parity with or
junior to the Subordinated Debt Securities. See
"Description of Debt Securities -- Subordination of
Subordinated Debt Securities." The Debt Securities of any
series may be issued with Securities Warrants, and, in the
case of the Subordinated Debt Securities, may be convertible
into Equity Securities of the Corporation. Unless otherwise
indicated in a Prospectus Supplement, the maturity of the
Subordinated Debt Securities will be subject to acceleration
only in the event of certain events of bankruptcy,
insolvency, or reorganization of the Corporation. See
"Description of Debt Securities -- Events of Default".
The specific terms of the Securities in respect of
which this Prospectus is being delivered will be set forth
in a Prospectus Supplement and, among other things, will
include, where applicable, (i) in the case of Debt
Securities, the specific designation, aggregate principal
amount, currency, denomination, maturity, priority, premium,
if any, rate of interest (which may be variable or fixed),
time of payment of interest, terms for optional redemption
or repayment by the Corporation or any holder and for
sinking fund payments, terms for conversion, the initial
public offering price, any special provisions related to
Debt Securities denominated in a foreign currency or issued
as medium-term notes, original issue discount securities, or
with other special terms, and the designation of any
applicable trustee, security registrar, or paying agent,
(ii) in the case of shares of Preferred Stock, the specific
title and stated value, number of shares or fractional
interests therein, any dividend, liquidation, redemption,
voting, and other rights, the terms for conversion, if any,
the initial public offering price, and whether such shares
are to be issued as Depositary Shares, and, if so, the
fraction of a share to be represented by each Depositary
Share and the designation of the Depositary (as defined
herein), (iii) in the case of Common Stock, the aggregate
number of shares offered and the initial offering price, and
(iv) in the case of Securities Warrants, where applicable,
the applicable type and amount of securities covered
thereby, and, where applicable, the aggregate amount,
duration, offering price, exercise price, and detachability.
A Prospectus Supplement will also contain
information, where applicable, about certain U.S. Federal
income tax, accounting, and other considerations relating
to, and any listing on a securities exchange of, the
Securities covered by the Prospectus Supplement.
THE SECURITIES WILL BE OBLIGATIONS OF THE
CORPORATION, ARE NOT AND WILL NOT BE SAVINGS ACCOUNTS,
DEPOSITS, WILL NOT BE OTHER OBLIGATIONS OF ANY BANK OR NONBANK
SUBSIDIARY OF THE CORPORATION, AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE
FUND, THE SAVINGS ASSOCIATION INSURANCE FUND, OR ANY OTHER
GOVERNMENT AGENCY OR INSTRUMENTALITY.
- - - - - - - - - - - - - - - - - - -
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Securities may be sold to underwriters
pursuant to the terms of the offering fixed at the time of
sale, directly by the Corporation, or through dealers or
agents designated from time to time by the Corporation,
which agents may be affiliates of the Corporation. Each
Prospectus Supplement will set forth the names of the
underwriters, dealers, or agents, if any, and any applicable
fees, commissions, or discounts and the net proceeds to the
Corporation from such sale together with the terms of the
offering. See "Plan of Distribution."
THE DATE OF THIS PROSPECTUS IS , 1995.
AVAILABLE INFORMATION
The Corporation is subject to the informational
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and in accordance therewith
files reports, proxy statements, and other information with
the Securities and Exchange Commission (the "Commission").
Such reports, proxy statements, and other information filed
by the Corporation can be inspected and copied at the public
reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the Commission's regional offices at The
Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and Seven World Trade Center,
Thirteenth Floor, New York, New York 10048. Copies of such
material can be obtained by mail from the Public Reference
Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Common
Stock of the Corporation is quoted on the Nasdaq National
Stock Market (symbol: DEPS), and such reports, proxy
statements, and other information concerning the Corporation
also may be inspected at the offices of the National
Association of Securities Dealers, Inc. at 9513 Key West
Avenue, Rockville, Maryland 20850-3389.
The Prospectus constitutes part of a registration
statement on Form S-3 (together with all amendments and
exhibits thereto, the "Registration Statement") filed by the
Corporation with the Commission under the Securities Act.
This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which
are omitted from this Prospectus in accordance with the
rules and regulations of the Commission. Reference is made
to the Registration Statement and to the exhibits thereto
for further information pertaining to the Corporation and
the Securities offered hereby. The Registration Statement
(and exhibits thereto) may be inspected without charge at
the office of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and copies thereof may be obtained
from the Commission at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this
Prospectus the following documents and information
heretofore filed by the Corporation with the Commission:
1. The Corporation's Annual Report on Form 10-K
for the year ended December 31, 1994;
2. The Corporation's Quarterly Reports on Form
10-Q for the quarters ended March 30, 1995,
June 30, 1995 and September 30, 1995;
3. The description of capital stock contained in
Item 14 of the Corporation's Registration
Statement on Form 10 filed April 21, 1970,
Item 4 of the Corporation's Quarterly Report
on Form 10-Q for the quarter ended March 31,
1982, Item 4 of the Corporation's Quarterly
Report on Form 10-Q for the quarter ended
March 31, 1986, Item 4 of the Corporation's
Quarterly Report on Form 10-Q for the quarter
ended March 31, 1987, relating to the
description of the Corporation's Common
Stock; and
4. The Corporation's Current Report on Form 8-K
dated September 26, 1995.
All reports subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act prior to the termination of the offering of the
Securities offered hereby shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in a
Prospectus Supplement, or any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of
this Prospectus.
THE CORPORATION WILL PROVIDE UPON REQUEST AND
WITHOUT CHARGE TO EACH PERSON TO WHOM THIS PROSPECTUS IS
DELIVERED A COPY OF ANY OR ALL OF THE FOREGOING DOCUMENTS
INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO
SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED
THEREIN BY REFERENCE). WRITTEN REQUESTS SHOULD BE DIRECTED
TO ROBERT G. BARNETT, GENERAL COUNSEL AND SECRETARY, DEPOSIT
GUARANTY CORP., 210 EAST CAPITOL STREET, POST OFFICE BOX
730, JACKSON, MISSISSIPPI, 39205. (TELEPHONE (601) 354-8497).
NO DEALER, SALESMAN, OR OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY
UNDERWRITER OR AGENT. THIS PROSPECTUS MAY NOT BE USED TO
CONSUMMATE SALES OF THE SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT. THIS PROSPECTUS AND THE ACCOMPANYING
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THE REGISTERED SECURITIES TO WHICH THEY RELATE AND DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES IN ANY JURISDICTION TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS
OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION
SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION
CONTAINED OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO SUCH DATE.
UNLESS OTHERWISE INDICATED, CURRENCY AMOUNTS IN
THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT ARE STATED IN
U.S. DOLLARS ("$," "DOLLARS," "U.S. DOLLARS," OR "U.S. $").
THE CORPORATION
Deposit Guaranty Corp. (the "Corporation") is a
Mississippi business corporation organized in 1968 as a bank
holding company registered under the Bank Holding Company
Act of 1956, as amended (the "BHCA"). The Corporation is
headquartered at 210 East Capitol Street, Jackson,
Mississippi 39201, telephone (601) 354-8497. Its principal
subsidiaries are Deposit Guaranty National Bank ("Deposit
Guaranty"), a national banking association, with its
principal office in Jackson, Mississippi, Commercial
National Bank ("Commercial"), a national banking association
with its principal office in Shreveport, Louisiana, Citizens
National Bank ("Citizens National"), a national banking
association with its principal office in Hammond, Louisiana
and Merchants National Bank ("Merchants"), a national
banking association with its principal office in Fort Smith,
Arkansas. The Corporation, through its subsidiaries,
provides comprehensive corporate, commercial, correspondent
and individual banking services, and personal and corporate
trust services.
As of December 31, 1994, the Corporation had total
assets of $5.1 billion, total deposits of $4 billion, total
loans of $2.9 billion and shareholders' equity of $443.5
million. Based on total assets at December 31, 1994, the
Corporation ranked first among Mississippi-based bank
holding companies.
Deposit Guaranty is located throughout Mississippi
with approximately 133 banking locations and is the second
largest bank in Mississippi.
Commercial is located in Louisiana. It is the
fifth largest bank in Louisiana and has nineteen banking
locations in the Shreveport/Bossier market and five branches
in the Monroe/West Monroe market.
Deposit Guaranty, through its wholly-owned
subsidiary, Deposit Guaranty Mortgage Company, acts as a
mortgage lender, mortgage banker, mortgage broker and
mortgage servicing agent throughout Mississippi and
Shreveport/Bossier. On August 8, 1995, Deposit Guaranty
Mortgage Company acquired First Mortgage Corp, located in
Omaha, Nebraska for $15.8 million in cash. First Mortgage
Corp. has a $1.1 billion mortgage servicing portfolio and 6
production offices in Nebraska and Oklahoma.
The Corporation provides investment advice and
brokerage services through three indirect subsidiaries,
Deposit Guaranty Investments, Inc., a subsidiary of Deposit
Guaranty, Commercial National Brokerage Services, Inc., a
subsidiary of Commercial and Merchants Investment Center,
Inc., a subsidiary of Merchants.
The Corporation provides credit insurance related
to extensions of credit by its bank subsidiaries through its
subsidiary, G&W Life Insurance Company.
During 1994, the Corporation acquired First
Columbus Financial Corporation and its wholly-owned
subsidiary First Columbus National Bank located in Columbus,
Mississippi, with assets of approximately $209 million.
First Columbus Financial Corporation was merged into the
Corporation and First Columbus National Bank was merged into
Deposit Guaranty. At year end 1994, the Corporation
acquired LBO Bancorp, Inc., with assets having a fair value
of $109 million, and its wholly-owned subsidiary, Louisiana
Bank, located in West Monroe, Louisiana. LBO Bancorp, Inc.
was merged into a subsidiary of the Corporation and
Louisiana Bank was merged into Commercial. On March 10,
1994, the Corporation purchased the Coahoma County,
Mississippi operations of a local Mississippi bank. This
acquisition added assets of approximately $82 million.
On May 19, 1995, the Corporation exchanged 1.4
million shares of Common Stock for all of the outstanding
shares of Citizens National Bancshares, Inc. ("Citizens"), a
bank holding company, in a pooling of interests transaction.
Citizens had assets of approximately $193 million at the
date of acquisition.
On August 31, 1995, the Corporation exchanged
994,026 shares of Common Stock and $3.7 million for all of
the outstanding shares of common stock of First Merchants
Financial Corporation ("First Merchants"), a bank holding
company with approximately $280 million in total assets.
First Merchants was then merged into Deposit Guaranty
Arkansas Corp., a wholly-owned subsidiary of Deposit
Guaranty Corp., which will continue to operate six branches
in the Fort Smith market under the name Merchants National
Bank.
The Corporation is a legal entity separate and
distinct from its banking and other subsidiaries.
Accordingly, the right of the Corporation, its
securityholders and its creditors to participate in any
distribution of the assets or earnings of its banking and
other subsidiaries is necessarily subject to the prior
claims of the respective creditors of such banking and other
subsidiaries, except to the extent that claims of the
Corporation in its capacity as a creditor of such banking
and other subsidiaries may be recognized.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The Corporation's ratios of earnings to fixed
charges and to combined fixed charges and preferred stock
dividends are set forth below for the periods indicated:
Nine Months Ended
Years Ended December 31, September 30,
1990 1991 1992 1993 1994 1994 1995
Earnings to Fixed
Charges and to Combined
Fixed Charges and
Preferred Stock Divi-
dend Requirements:
Excluding Interest
on Deposits . . . . 1.85 2.57 4.48 7.84 7.01 7.12 4.69
Including Interest
on Deposits . . . . 1.13 1.18 1.38 1.75 1.79 1.78 1.65
For purposes of computing the above ratios,
earnings represent consolidated income before income taxes
plus fixed charges. Fixed charges include interest expense
(excluding or including interest on deposits, as the case
may be) and the proportion deemed representative of the
interest factor of rental expense, net of income from
subleases. The Corporation had no outstanding preferred
stock for the periods shown.
REGULATORY MATTERS
GENERAL
The Corporation is a bank holding company subject
to supervision and regulation by the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board")
under the BHCA. As a bank holding company, the
Corporation's activities and those of its banking and
nonbanking subsidiaries are limited to the business of
banking and activities closely related or incidental to
banking, and the Corporation may not directly or indirectly
acquire the ownership or control of more than five percent
of any class of voting shares or substantially all of the
assets of any company, including a bank, without the prior
approval of the Federal Reserve Board.
The Corporation's bank subsidiaries, Deposit
Guaranty, Commercial, Citizens National and Merchants, are
national banks subject to supervision and examination by the
Office of the Comptroller of the Currency (the "OCC"). The
Federal Deposit Insurance Corporation (the "FDIC") also has
back-up enforcement authority with respect to these bank
subsidiaries. The Corporation's bank subsidiaries are
insured by, and subject to certain regulations of, the FDIC,
and are also subject to requirements and restrictions under
federal and state law, including requirements to maintain
reserves against deposits, restrictions on the types and
amounts of loans that may be made and the interest that may
be charged thereon, and limitations on the types of
investments that may be made and the types of services that
may be offered. Various consumer laws and regulations also
affect the operations of the Corporation's bank
subsidiaries.
The following description summarizes some of the
laws to which the Corporation and its bank subsidiaries are
subject. To the extent statutory or regulatory provisions
or proposals are described, the description is qualified in
its entirety by reference to the particular statutory or
regulatory provisions or proposals.
REGULATORY RESTRICTIONS ON DIVIDENDS
It is the policy of the Federal Reserve Board that
bank holding companies should pay cash dividends on common
stock only out of income available over the past year and
only if prospective earnings retention is consistent with
the organization's expected future needs. The policy
provides that bank holding companies should not maintain a
level of cash dividends that undermines the bank holding
company's ability to serve as a source of strength to its
bank subsidiaries. Principal sources of revenues for the
Corporation are dividends received from its banks and other
subsidiaries and interest earned on short-term investments
and advances to subsidiaries.
Federal law imposes limitations on the payment of
dividends by the national bank subsidiaries of the
Corporation. Two different calculations are performed to
measure the amount of dividends that may be paid: a recent
earnings test and a cumulative net profit test. Under the
recent earnings test, a dividend may not be paid if the
total of all dividends declared by a national bank in any
calendar year is in excess of the current year's net profits
combined with the retained net profits of the two preceding
years unless the bank obtains the approval of the OCC.
Under the cumulative net undivided profits test, a dividend
may not be paid in excess of a bank's cumulative net profits
after deducting bad debts in excess of the reserve for loan
losses. Under the recent earnings test, which is the more
restrictive of the two tests, at September 30, 1995, Deposit
Guaranty, Commercial, Citizens National and Merchants could
pay dividends of $103.4 million, $26.1 million, $4.2 million
and $1.7 million, respectively, to the Corporation without
prior approval of the OCC. Deposit Guaranty, Commercial,
Citizens National and Merchants had undivided profits of
$193.2 million $43.0 million, $14.3 million and $16.2
million, respectively, at September 30, 1995.
In addition, the Federal regulatory agencies are
authorized to prohibit a national bank or bank holding
company from engaging in an unsafe or unsound banking
practice. Depending upon the circumstances, the agencies
could take the position that paying a dividend would
constitute an unsafe or unsound banking practice.
HOLDING COMPANY STRUCTURE
The Corporation's bank subsidiaries are subject to
restrictions under federal law which limit certain
transactions by each of them with the Corporation and its
nonbanking subsidiaries, including loans, other extensions
of credit, investments or asset purchases. Such
transactions by any bank subsidiary with the Corporation or
any of its nonbanking subsidiaries are limited in amount to
ten percent of such bank subsidiary's capital and surplus
and, with respect to the Corporation and all of its
nonbanking subsidiaries together, to an aggregate of twenty
percent of such bank subsidiary's capital and surplus.
Furthermore, such loans and extensions of credit, as well as
certain other transactions, are required to be secured in
specified amounts. These and certain other transactions,
including any payment of money to the Corporation, must be
on terms and conditions that are or in good faith would be
offerred to nonaffiliated companies.
Because the Corporation is a legal entity separate
and distinct from its banking and nonbanking subsidiaries,
its right to participate in the distribution of assets of
any subsidiary upon the subsidiary's liquidation or
reorganization will be subject to the prior claims of the
subsidiary's creditors (including depositors in the case of
bank subsidiaries) except to the extent that the Corporation
may itself be a creditor with recognized claims against the
subsidiary.
CROSS-GUARANTY AND HOLDING COMPANY LIABILITY
A depository institution insured by the FDIC can
be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC in connection with (i)
the default of a commonly controlled FDIC-insured depository
institution or (ii) any assistance provided by the FDIC to a
commonly controlled depository institution in danger of
default. Each of the Corporation's bank subsidiaries is a
commonly controlled depository institution. Cross-guarantee
liability may result in the ultimate failure or insolvency
of one or more insured depository institutions in a holding
company structure. Any obligation or liability owed by a
bank subsidiary to its parent company is subordinate to the
bank subsidiary's cross-guarantee liability.
Under Federal Reserve Board policy, a bank holding
company is expected to act as a source of financial strength
to each of its banking subsidiaries and commit resources to
their support. Such support may be required at times when,
absent this Federal Reserve Board policy, a holding company
may not be inclined to provide it. As discussed below under
"Prompt Corrective Action," a bank holding company in
certain circumstances could be required to guarantee the
capital plan of an undercapitalized bank subsidiary.
In the event of a bank holding company's
bankruptcy under Chapter 11 of the U.S. Bankruptcy Code, the
trustee will be deemed to have assumed and is required to
cure immediately any deficit under any commitment by the
debtor holding company to any of the federal banking
agencies to maintain the capital of an insured depository
institution, and any claim for breach of such obligation
will generally have priority over most other unsecured
claims.
PROMPT CORRECTIVE ACTION
Under the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA"), the federal banking
agencies must take prompt supervisory and regulatory actions
against undercapitalized depository institutions.
Depository institutions are assigned one of five capital
categories: "well capitalized," "adequately capitalized,"
"undercapitalized," "significantly undercapitalized," and
"critically undercapitalized," and subjected to differential
regulation corresponding to the capital category within
which the institution falls. Under certain circumstances, a
well capitalized, adequately capitalized or undercapitalized
institution may be treated as if the institution were in the
next lower capital category. A depository institution is
generally prohibited from making capital distributions
(including paying dividends) or paying management fees to a
holding company if the institution would thereafter be
undercapitalized. Adequately capitalized institutions may
accept brokered deposits only with a waiver from the FDIC,
while undercapitalized institutions may not accept, renew,
or roll over brokered deposits.
The banking regulatory agencies are permitted or,
in certain cases, required to take certain actions with
respect to institutions falling within one of the three
undercapitalized categories. Depending on the level of an
institution's capital, the agency's corrective powers
include, among other things: placing limits on asset growth
and restrictions on activities; placing additional
restrictions on transactions with affiliates; restricting
the interest rate the institution may pay on deposits;
prohibiting the institution from accepting deposits from
correspondent banks; prohibiting the payment of principal
and interest on subordinated debt; prohibiting the holding
company from making distributions without prior regulatory
approval; and in the most severe cases, appointing a
conservator or receiver for the institution. A bank that is
undercapitalized is required to submit a capital restoration
plan, and such a plan will not be accepted unless, among
other things, the bank's holding company guarantees the plan
up to a certain specified amount. As of September 30, 1995
all of the Corporation's bank subsidiaries exceeded the
required capital ratios for classification as "well
capitalized." See "Capital Adequacy."
FDIC INSURANCE ASSESSMENTS
The Corporation's bank subsidiaries, the deposits
of which are insured, up to applicable limits, by the Bank
Insurance Fund (the "BIF") of the FDIC, are subject to FDIC
deposit insurance assessments.
The FDIC has adopted a risk-based assessment
system under which the assessment rate for an insured
depository institution varies according to the level of risk
involved in its activities. Under this risk-based insurance
system, as recently revised, BIF-insured depository
institutions are currently assessed premiums of between 4
and 31 cents per $100 of deposits, depending upon the
institution's capital position and other supervisory
factors. Effective January 1, 1996 the rates applicable to
BIF-assessed deposits will be reduced by 4 basis points to
range between 0 and 27 cents per $100 of deposits. On that
date the rate assessed for each of the Corporation's bank
subsidiaries, which is now 4 cents per $100 of eligible
deposits, will decrease to zero, subject to a minimum
assessment of $2,000 per institution per year.
There are a number of proposals being considered
by Congress to recapitalize the Savings Association
Insurance Fund of the FDIC, which insures most thrift
institution deposits, in ways that could lead to higher
insurance premium assessments for BIF members. Among other
things, the proposed budget reconciliation legislation, as
reported by the House and Senate Banking Committees and
shortly to be acted upon by Congress, would dedicate certain
BIF insurance premiums (generally expected to be assessed at
approximately 2.5 cents per $100 of deposits) to the
repayment of debt of the Financing Corporation (FICO). The
President has threatened to veto the budget reconciliation
bill unless a compromise can be reached on other provisions
that are under dispute -- but the BIF assessment provisions
could be included in a later budget bill. The final form of
any such legislation cannot be predicted at this time.
CAPITAL ADEQUACY
<TABLE>
<CAPTION>
RISK-BASED CAPITAL AND LEVERAGE RATIOS
As of September 30, 1995
Minimum "Well capital-
Deposit Citizens required ized" minimum
Corporation Guaranty Commercial National Merchants ratio ratio
<S> <C> <C> <C> <C> <C> <C> <C>
Total
stockholders'
equity . . .
Tier 1 capital 10.91% 10.66% 13.93% 20.07% 12.17% 4.00% 6%
Total capital 12.17% 11.91% 15.19% 21.32% 13.42% 8.00% 10%
Risk-weighted
assets . . .
Leverage ratio 7.95% 8.09% 8.57% 10.44% 7.57% 3.00% 5%
</TABLE>
The Federal Reserve Board has adopted risk-based
capital guidelines for bank holding companies such as the
Corporation. The minimum ratio of total capital to risk-
weighted assets (which are the credit risk equivalents of
balance sheet assets and certain off balance sheet items
such as standby letters of credit) is 8.00 percent. At
least half of the total capital must be composed of common
stockholders' equity (including retained earnings), non-
cumulative perpetual preferred stock, and a limited amount
of cumulative perpetual preferred stock and minority
interests in the equity accounts of consolidated
subsidiaries, less goodwill, disallowed intangibles and
disallowed deferred tax assets ("Tier 1 capital"). The
remainder may consist of a limited amount of subordinated
debt, other perpetual preferred stock, hybrid capital
instruments, mandatory convertible debt securities and a
limited amount of reserves for loan losses ("Tier 2
capital"). The Federal Reserve Board has also adopted a
minimum leverage ratio for bank holding companies,
requiring Tier 1 capital of at least 3.00 percent of
average total consolidated assets. Under the Federal
Reserve Board's requirements, the Corporation's Tier 1 and
total capital and leverage ratios at September 30, 1995 were
10.91 percent, 12.17 percent and 7.95 percent, respectively.
The OCC and other federal bank regulatory
authorities have also established risk-based and leverage
capital guidelines for banks. These regulations are
generally similar to those established by the Federal
Reserve Board for banking holding companies. Under the OCC
guidelines, the Tier 1, Total capital and leverage ratios at
September 30, 1995, respectively, for Deposit Guaranty were
10.66 percent, 11.91 percent and 8.09 percent, respectively,
for Commercial were 13.93 percent, 15.19 percent and 8.57
percent, respectively, for Citizens National, were 20.07
percent, 21.32 percent and 10.44 percent, respectively and
for Merchants, were 12.17 percent, 13.42 percent and 7.57
percent, respectively.
The federal banking agencies' risk-based and
leverage ratios are minimum supervisory ratios generally
applicable to banking organizations that meet certain
specified criteria, assuming that they have the highest
regulatory rating. Banking organizations not meeting these
criteria are expected to operate with capital positions well
above the minimum ratios. The federal bank regulatory
agencies may set capital requirements for a particular
banking organization that are higher than the minimum ratios
when circumstances warrant. Federal Reserve Board
guidelines also provide that banking organizations
experiencing internal growth or making acquisitions will be
expected to maintain strong capital positions substantially
above the minimum supervisory levels, without significant
reliance on intangible assets. In addition, the regulations
of the OCC and the Federal Reserve provide that
concentration of credit risk and certain risks arising from
nontraditional activities, as well as an institution's
ability to manage these risks, are important factors to be
taken into account by regulatory agencies in assessing an
institution's overall capital adequacy.
The OCC and the Federal Reserve recently adopted
amendments to their risk-based capital regulations to
provide for the consideration of interest rate risk in the
agencies' determination of a banking institution's capital
adequacy. The amendments require such institutions to
effectively measure and monitor their interest rate risk and
to maintain capital adequate for that risk. The agencies
have also issued for comment a joint policy statement that
describes a frame-work that may be used by the agencies to
measure and monitor an institution's level of interest rate
risk in the assessment of a bank's capital adequacy. The
agencies plan at some future date to propose the
establishment of an explicit minimum capital requirement to
account for interest rate risk.
As discussed below under "Enforcement Powers,"
failure to meet the minimum regulatory capital requirements
could subject a banking institution to a variety of
enforcement remedies available to federal regulatory
authorities, including, in the most severe cases, the
termination of deposit insurance by the FDIC and placing the
institution into conservatorship or receivership.
ENFORCEMENT POWERS OF THE FEDERAL BANKING AGENCIES
The OCC, the Federal Reserve, and the FDIC have
broad enforcement powers, including the power to terminate
deposit insurance, impose substantial fines and other civil
and criminal penalties and to appoint a conservator or
receiver. Failure to comply with applicable laws,
regulations and supervisory agreements could subject the
Corporation or its bank subsidiaries, as well as officers,
directors and institution-affiliated parties of these
organizations, to administrative sanctions and potentially
substantial civil money penalties. In addition to the
grounds discussed under "Prompt Corrective Action," the OCC
may appoint the FDIC as conservator or receiver for a bank
(or the FDIC may appoint itself, under certain
circumstances) if any one or more of a number of
circumstances exist, including, without limitation, the fact
that the bank is undercapitalized and has no reasonable
prospect of becoming adequately capitalized; fails to become
adequately capitalized when required to do so; fails to
submit a timely and acceptable capital restoration plan; or
materially fails to implement an accepted capital
restoration plan.
CONTROL ACQUISITIONS
The Change in Bank Control Act (the "CBCA")
prohibits a person or group of persons from acquiring
"control" of a bank holding company unless the Federal
Reserve Board has been notified and has not objected to the
transaction. Under a rebuttable presumption established by
the Federal Reserve Board, the acquisition of 10% or more of
a class of voting stock of a bank holding company with a
class of securities registered under Section 12 of the
Exchange Act, such as the Corporation, would, under the
circumstances set forth in the presumption, constitute the
acquisition of control.
In addition, any company is required to obtain the
approval of the Federal Reserve Board under the BHCA before
acquiring 25% (5% in the case of an acquiror that is a
banking holding company) or more of the outstanding Common
Stock of the Corporation, or otherwise obtaining control or
a "controlling influence"over the Corporation.
Effective September 24, 1995, the Riegle-Neal
Interstate Banking and Branching Efficiency Act of 1994 has
permitted an adequately capitalized and adequately managed
bank holding company, with Federal Reserve Board approval,
to acquire banks located in states other than the bank
holding company's home state without regard to whether the
transaction is prohibited under state law. In addition,
effective June 1, 1997, national banks and state banks with
different home states will be permitted to merge across
state lines, with the approval of the appropriate federal
banking agency, unless the home state of a participating
bank passes legislation prior to this date expressly
prohibiting interstate mergers.
FUTURE LEGISLATION
Various legislation, including proposals to
overhaul the bank regulatory system, expand bank and bank
holding company powers and limit the investments that a
depository institution may make with insured funds, is from
time to time introduced in Congress. Such legislation may
change banking statutes and the operating environment of the
Corporation and its bank subsidiaries in substantial and
unpredictable ways. The Corporation cannot determine the
ultimate effect that potential legislation, if enacted, or
implementing regulations, would have upon the financial
condition or results of operations of the Corporation or its
subsidiaries.
USE OF PROCEEDS
Unless otherwise set forth in the Applicable
Prospectus Supplement, the Corporation intends to use the
net proceeds from the sale of the Securities for general
corporate purposes, including investments in, and advances
to, the Corporation's banking and nonbanking subsidiaries,
reduction of short-term borrowings, investments, and
financing possible future acquisitions including, without
limitation, the acquisition of banking and nonbanking
companies and financial assets and liabilities. The
Corporation may also use part of the net proceeds from the
sale of the Securities for the repurchase of its Common
Stock.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued under
an Indenture (the "Senior Indenture"), between the
Corporation and SunTrust Bank, Atlanta, as trustee. The
Subordinated Debt Securities are to be issued under a second
Indenture (the "Subordinated Indenture"), between the
Corporation and SunTrust Bank, Atlanta, as trustee. Copies
of the Senior Indenture and the Subordinated Indenture have
been filed with the Commission as exhibits to the
Registration Statement. The Senior Indenture and the
Subordinated Indenture are sometimes referred to
collectively as the "Indentures." SunTrust Bank, Atlanta is
hereinafter referred to as the "Senior Trustee" when
referring to it in its capacity as trustee under the Senior
Indenture, as the "Subordinated Trustee" when referring to
it in its capacity as trustee under the Subordinated
Indenture, and as the "Trustee" when referring to it in its
capacity as trustee under both of the Indentures. The
following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the
Indentures do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the
provisions of the Indenture applicable to a particular
series of Debt Securities (the "Applicable Indenture"),
including the definitions therein of certain terms.
Wherever particular Sections, Articles or defined terms of
the Applicable Indenture are referred to, it is intended
that such Sections, Articles or defined terms shall be
incorporated herein by reference. Article and Section
references used herein are references to the Applicable
Indenture. Capitalized terms not otherwise defined herein
shall have the meaning given in the Applicable Indenture.
The following sets forth certain general terms and
provisions of the Debt Securities offered hereby. The
particular terms of the Debt Securities offered by any
Prospectus Supplement (the "Offered Debt Securities") will
be described in the Prospectus Supplement relating to such
Offered Debt Securities (the "Applicable Prospectus
Supplement").
The Corporation is a banking holding company, and
the right of the Corporation to participate as a shareholder
in any distribution of assets of any subsidiary upon its
liquidation or reorganization or winding-up (and thus the
ability of Holders of the Debt Securities to benefit, as
creditors of the Corporation, from such distribution) is
subject to the prior claims of creditors of any such
subsidiary. The Corporation's bank subsidiaries are subject
to claims by creditors for debt obligations, including
deposit liabilities, obligations for federal funds purchased
and securities sold under repurchase agreements. There are
also various legal limitations on the extent to which the
Corporation's bank subsidiaries may pay dividends or
otherwise supply funds to the Corporation or its affiliates.
See "Regulatory Matters."
GENERAL
The Indentures do not limit the amount of Debt
Securities that may be issued thereunder and provide that
Debt Securities may be issued thereunder from time to time
in one or more series. The Debt Securities will be
unsecured obligations of the Corporation.
Unless otherwise indicated in the Applicable
Prospectus Supplement, principal of, premium, if any, and
interest on the Debt Securities will be payable, and the
transfer of Debt Securities will be registrable, at the
office or agency of the Corporation in each Place of Payment
maintained by the Corporation and at any other office or
agency maintained by the Corporation for such purpose,
except that, at the option of the Corporation, interest may
be paid by mailing a check to the address of the Person
entitled thereto as it appears on the register for the Debt
Securities. (Sections 3.1, 3.5, 3.7 and 10.2) The Debt
Securities will be issued only in fully registered form
without coupons and, unless otherwise indicated in the
Applicable Prospectus Supplement, in denominations of $1,000
or integral multiples thereof. (Section 3.2) No service
charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Corporation may
require payment of a sum sufficient to cover any tax or
other governmental charge imposed in connection therewith.
(Section 3.5)
The Applicable Prospectus Supplement will describe
the following terms of the Offered Debt Securities: (1) the
title of the Offered Debt Securities; (2) whether the
Offered Debt Securities are Senior Debt Securities or
Subordinated Debt Securities; (3) any limit on the aggregate
principal amount of the Offered Debt Securities; (4) the
Person to whom any interest on the Offered Debt Securities
is payable if other than the Person in whose name any such
Offered Debt Securities are registered; (5) the date or
dates on which the principal of the Offered Debt Securities
will mature; (6) the rate or rates per annum (which may be
fixed or variable) at which the Offered Debt Securities will
bear interest, if any, and the date or dates from which any
such interest, if any, will accrue; (7) the dates on which
such interest, if any, on the Offered Debt Securities will
be payable and the Regular Record Dates for such Interest
Payment Dates; (8) the place or places where the principal
of and any premium and interest on the Offered Debt
Securities shall be payable; (9) any mandatory or optional
sinking funds or analogous provisions; (10) the date, if
any, after which and the price or prices at which the
Offered Debt Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed and the other
detailed terms and provisions of any such optional or
mandatory redemption provision; (11) the obligation of the
Corporation, if any, to redeem or repurchase the Offered
Debt Securities at the option of the Holder; (12) if other
than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Offered Debt
Securities shall be issuable; (13) if other than the
principal amount thereof, the portion of the principal
amount of the Offered Debt Securities that will be payable
upon the declaration of acceleration of the Maturity
thereof; (14) the currency of payment of principal of and
any premium and interest on the Offered Debt Securities;
(15) any index used to determine the amount of payment of
principal of, and any premium and interest on, the Offered
Debt Securities; (16) if the Offered Debt Securities will be
issuable only in the form of a Global Security, the
Depositary or its nominee with respect to the Offered Debt
Securities and the circumstances under which the Global
Security may be registered for transfer or exchange in the
name of a Person other than the Depositary or its nominee;
(17) the applicability, if any, of the provisions described
under "Defeasance and Covenant Defeasance"; (18) any
additional Event of Default, and in the case of any Offered
Subordinated Debt Securities, any additional Event of
Default that would result in the acceleration of the
maturity thereof; and (19) any other terms of the Offered
Debt Securities. (Section 3.1)
Both Senior Debt Securities and Subordinated Debt
Securities may be issued as Original Issue Discount Debt
Securities to be offered and sold at a substantial discount
below their stated principal amount. Federal income tax
consequences and other special considerations applicable to
any such Original Issue Discount Debt Securities will be
described in the Applicable Prospectus Supplement.
"Original Issue Discount Debt Security" means any Debt
Security which provides for an amount less than the
principal amount thereof to be due and payable upon the
declaration of acceleration of the Maturity thereof upon the
occurrence of an Event of Default and the continuation
thereof. (Section 1.1)
Unless otherwise indicated in the Applicable
Prospectus Supplement, the covenants contained in the
Indentures and the Debt Securities will not afford Holders
protection in the event of a sudden decline in credit rating
that might result from a recapitalization, restructuring, or
other highly leveraged transaction.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Applicable
Prospectus Supplement, the following provisions will apply
to the Subordinated Debt Securities.
The payment of the principal of, and interest on,
the Subordinated Debt Securities will, to the extent set
forth in the Subordinated Indenture, be subordinated in
right of payment to the prior payment in full of all Senior
Indebtedness (as defined below). (Section 13.1) In certain
events of insolvency, bankruptcy, reorganization or similar
events involving the Corporation, the payment of the
principal of and the interest on the Subordinated Debt
Securities will, to the extent set forth in the Subordinated
Indenture, also effectively be subordinated in right of
payment to the prior payment in full of all Other Financial
Obligations (as defined below). Upon any payment or
distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshalling of assets or any
bankruptcy, insolvency or similar proceedings of the
Corporation, the holders of all Senior Indebtedness will
first be entitled to receive payment in full of all amounts
due or to become due thereon before the Holders of the
Subordinated Debt Securities will be entitled to receive any
payment in respect of the principal of, or interest on, the
Subordinated Debt Securities. (Section 13.2) If, upon any
such payment or distribution of assets to creditors, there
remain, after giving effect to such subordination provisions
in favor of the holders of Senior Indebtedness, any amounts
of cash, property or securities available for payment or
distribution in respect of the Senior Debt Securities (as
defined in the Subordinated Indenture, "Excess Proceeds")
and if, at such time, any person entitled to payment
pursuant to the terms of the Other Financial Obligations (as
defined in the Subordinated Indenture, "Entitled Person")
has not received payment in full of all amounts due or to
become due on or in respect of such Other Financial
Obligations, then such Excess Proceeds shall first be
applied to pay or provide for the payment in full of such
Other Financial Obligations before any payment or
distribution may be made in respect of the Subordinated Debt
Securities. In the event of the acceleration of the
Maturity of any Subordinated Debt Securities, the holders of
all Senior Indebtedness will first be entitled to receive
payment in full of all amounts due or to become due thereon
before the Holders of the Subordinated Debt Securities will
be entitled to receive any payment of principal of, or
interest on, the Subordinated Debt Securities. (Section
13.3) Accordingly, in a case of such an acceleration, all
Senior Indebtedness would have to be repaid before any
payment could be made in respect of the Subordinated Debt
Securities. No payments on account of principal or interest
in respect of the Subordinated Debt Securities may be made
if there shall have occurred and be continuing a default in
any payment with respect to any Senior Indebtedness, or an
event of default with respect to any Senior Indebtedness
permitting the holders thereof to accelerate the maturity
thereof, or if any judicial proceeding shall be pending with
respect to any such default. (Section 13.4)
By reason of such subordination, in the event of
the insolvency of the Corporation, creditors of the
Corporation who are not holders of Senior Indebtedness or
the Subordinated Debt Securities may recover less, ratably,
than holders of Senior Indebtedness and may recover more,
ratably, than Holders of the Subordinated Debt Securities.
"Senior Indebtedness" is defined in the
Subordinated Indenture to mean the principal of, premium, if
any, and interest on (i) all indebtedness of the Corporation
for money borrowed (including indebtedness of others
guaranteed by the Corporation) other than the Subordinated
Debt Securities, whether outstanding on the date of
execution of the Subordinated Indenture or thereafter
created, assumed or incurred and (ii) any amendments,
renewals, extensions, modifications and refundings of any
such indebtedness, unless in either case in the instrument
creating or evidencing any such indebtedness or pursuant to
which it is outstanding it is provided that such
indebtedness is not superior in right of payment to the
Subordinated Debt Securities. (Section 1.1) For the
purposes of this definition, "indebtedness for money
borrowed" is defined as (i) any obligation of, or any
obligation guaranteed by, the Corporation for the repayment
of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) any
deferred payment obligation of, or any such obligation
guaranteed by, the Corporation for the payment of the
purchase price of property or assets evidenced by a note or
similar instrument, and (iii) any obligation of, or any such
obligation guaranteed by, the Corporation for the payment of
rent or other amounts under a lease of property or assets
which obligation is required to be classified and accounted
for as a capitalized lease on the balance sheet of the
Corporation under generally accepted accounting principles.
"Other Financial Obligations" is defined in the
Subordinated Indenture to mean all obligations of the
Corporation to make payment pursuant to the terms of
financial instruments, such as (i) securities contracts and
foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest
rate and currency and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange
agreements, options, commodity futures contracts, commodity
options, contracts and (iii) similar financial instruments;
provided that the term "Other Financial Obligations" shall
not include (A) obligations on account of Senior
Indebtedness and (B) obligations on account of indebtedness
of the Corporation for money borrowed ranking pari passu
with or subordinate to the Subordinated Debt Securities.
The Subordinated Indenture will not limit the
amount of other indebtedness, including Senior Indebtedness
and Other Financial Obligations, that may be issued or
incurred by the Corporation or any of its Subsidiaries.
The Prospectus Supplement may further describe the
provisions, if any, applicable to the subordination of the
Subordinated Debt Securities of a particular series.
RESTRICTION ON SALE OR ISSUANCE OF VOTING STOCK OF PRINCIPAL
SUBSIDIARIES
The Senior Indenture contains a covenant by the
Corporation that, so long as any Debt Securities under the
Applicable Indenture are outstanding, (a) it will not, and
will not permit any Subsidiary to, issue, sell, transfer,
assign, pledge or otherwise dispose of any shares of Voting
Stock of any class of any Principal Subsidiary or any
securities convertible or exchangeable into or options,
warrants or rights to subscribe for or purchase shares of
Voting Stock of any class of such Principal Subsidiary,
unless, after giving effect to such transaction and to
shares issuable upon conversion or exchange of outstanding
securities convertible or exchangeable into such Voting
Stock or upon the exercise of options, warrants or rights
(including such securities, if any, which may be the subject
of such transaction), at least 80 percent of the outstanding
shares of Voting Stock of each class of such Principal
Subsidiary shall be owned at that time directly or
indirectly by the Corporation, free of any lien; and (b) it
will not permit any Principal Subsidiary to merge or
consolidate or convey or transfer all or substantially all
of its assets, unless at least 80 percent of the outstanding
shares of Voting Stock of each class (after giving effect to
such transaction and to shares issuable upon conversion or
exchange of outstanding securities convertible or
exchangeable into Voting Stock or upon the exercise of
options, warrants or rights, including such securities, if
any, which may be issued in such transaction) of the
surviving corporation in the case of merger or consolidation
or of the transferee corporation in the case of a conveyance
or transfer, shall be owned at the time directly or
indirectly by the Corporation.
As defined in the Senior Indenture, the term
"Principal Subsidiary" means Deposit Guaranty, Commercial,
Citizens National or Merchants and any successors to such
banks, and the term "Voting Stock" means stock which
ordinarily has voting power for election of a majority of
the board 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.
Notwithstanding the foregoing, any such issuance,
sale or disposition of shares or securities, or any such
merger or consolidation or conveyance or transfer of assets
shall not be prohibited if required (a) by any law,
regulation or order of any court or governmental authority
of competent jurisdiction or (b) as a condition imposed by
any law, regulation or order of any court or governmental
authority of competent jurisdiction to the acquisition by
the Corporation, directly or indirectly, through purchase of
stock or assets, merger, consolidation or otherwise of any
other corporation or entity, if, after giving effect to such
disposition and acquisition, (i) the Corporation would own,
directly or indirectly, more than 80 percent of the Voting
Stock of such other corporation or entity, and (ii) the
Consolidated Banking Assets of the Corporation would be at
least equal to the Consolidated Banking Assets of the
Corporation prior to such transaction. For this purpose,
"Consolidated Banking Assets" means all assets owned
directly or indirectly by a Bank Subsidiary and reflected in
the Corporation's consolidated statement of condition
prepared in accordance with generally accepted accounting
principles. (Section 10.7)
There is no similar restriction on the sale or
issuance of Voting Stock by a Principal Subsidiary in the
Subordinated Indenture.
EVENTS OF DEFAULT
The Senior Indenture (with respect to any series
of Senior Debt Securities then outstanding) and, unless
otherwise provided in the Applicable Prospectus Supplement,
the Subordinated Indenture (with respect to any series of
Subordinated Debt Securities), define an Event of Default as
any one of the following events: (a) default in the payment
of any interest on any Debt Security of that series when it
becomes due and payable, and continuance of such default for
a period of 30 days (in the case of the Subordinated
Indenture, whether or not payment is prohibited by the
subordination provisions); (b) default in the payment of the
principal of (or premium, if any, on) any Debt Security of
that series at its Maturity (in the case of the Subordinated
Indenture, whether or not payment is prohibited by the
subordination provisions); (c) failure to deposit any
sinking fund payment when, and as, due by the terms of a
Debt Security of that series (in the case of the
Subordinated Indenture, whether or not payment is prohibited
by the subordination provisions); (d) failure to perform any
other covenants or agreements of the Corporation in the
Applicable Indenture (other than covenants or agreements
included in the Applicable Indenture solely for the benefit
of a series of Debt Securities thereunder other than that
series), and continuance of such default for a period of 60
days after the holders of at least 25 percent of the
principal amount of the Outstanding Debt Securities of that
series have given written notice specifying such failure as
provided in the Applicable Indenture; (e) certain events in
bankruptcy, insolvency or reorganization of the Corporation
(and in the case of the Senior Indenture only, of certain of
its Subsidiaries); and (f) any other Event of Default
provided with respect to Debt Securities of that series.
(Section 5.1) If an Event of Default occurs with respect to
Debt Securities of any series, the Trustee shall give the
Holders of Debt Securities of such series notice of such
default, provided, however, that in the case of a default
described in (d) above, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
(Section 6.2)
If an Event of Default with respect to the Senior
Debt Securities of any series at the time Outstanding occurs
and is continuing, either the Trustee or the Holders of at
least 25 percent of the aggregate principal amount of the
Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series
are Original Issue Discount Debt Securities, such portion of
the principal amount as may be specified in the terms
thereof) of all the Senior Debt Securities of that series to
be due and payable immediately. Payment of the principal of
the Subordinated Debt Securities may be accelerated only in
the case of certain events of bankruptcy, insolvency or
reorganization of the Corporation. The Trustee and the
Holders will not be entitled to accelerate the maturity of
the Subordinated Debt Securities upon the occurrence of any
of the Events of Default described above except for those
described in subparagraph (e) with respect to the
Subordinated Debt Securities (i.e., certain events in
bankruptcy, insolvency or reorganization of the
Corporation). Accordingly, there is no right of
acceleration in the case of a default in the performance of
any other covenant with respect to the Subordinated Debt
Securities, including the payment of interest or principal.
At any time after a declaration of acceleration with respect
to Debt Securities of any series has been made, but before a
judgment or decree based on acceleration has been obtained,
the Holders of a majority of the aggregate principal amount
of Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration.
(Section 5.2)
The Indentures provide that, subject to the duty
of the Trustee during default to act with the required
standard of care, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at
the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable
security or indemnity. (Section 6.3) Subject to such
provisions for the indemnification of the Trustee and to
certain other conditions, the Holders of a majority of the
aggregate principal amount of the Outstanding Debt
Securities of any series will 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 Debt
Securities of that series. (Section 5.12)
No Holder of any series of Debt Securities will
have any right to institute any proceeding with respect to
the Applicable Indenture or for any remedy thereunder,
unless: (a) such Holder has previously given to the Trustee
under the Applicable Indenture written notice of a
continuing Event of Default; (b) the Holders of at least 25
percent of the aggregate principal amount of the Outstanding
Debt Securities of that series have made written request,
and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee; (c) in the 60-day
period following receipt of a written notice from a Holder,
the Trustee has not received from the Holders of a majority
of the aggregate principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such
request; and (d) the Trustee shall have failed to institute
such proceeding within such 60-day period. (Section 5.7)
However, such limitations do not apply to a suit instituted
by a Holder of a Debt Security for enforcement of payment of
the principal of and premium, if any, or interest on such
Debt Security on or after the respective due dates expressed
in such Debt Security. (Section 5.8)
The Corporation is required to furnish to the
Trustee annually a statement as to the performance by the
Corporation of certain of its obligations under the
Indenture and as to any default in such performance.
(Section 10.5)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that, if such provision is
made applicable to the Debt Securities of any series
pursuant to Section 3.1 of the Applicable Indenture (which
will be indicated in the Applicable Prospectus Supplement),
the Corporation may elect either (a) to defease and be
discharged from any and all obligations in respect of such
Debt Securities then outstanding (including, in the case of
Subordinated Debt Securities, the provisions described under
"Subordination of Subordinated Debt Securities" and except
for certain obligations to register the transfer of or
exchange of such Debt Securities, replace stolen, lost or
mutilated Debt Securities, maintain paying agencies and hold
monies for payment in trust) ("defeasance") or (b) to be
released from its obligations with respect to such Debt
Securities concerning the restriction on sale or issuance of
Voting Stock of the Corporation's Principal Subsidiaries
described under "Restriction on Sale or Issuance of Voting
Stock of Principal Subsidiaries" and the subordination
provisions described under "Subordination of Subordinated
Debt Securities" and any other covenants applicable to such
Debt Securities which are determined pursuant to Section 3.1
of the Applicable Indenture to be subject to covenant
defeasance ("covenant defeasance"), and the occurrence of an
event described in clause (b) (insofar as with respect to
covenants subject to covenant defeasance) under "Events of
Default" above shall no longer be an Event of Default, in
each case (a) or (b), if the Corporation 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, without reinvestment, to pay all
the principal of (and premium, if any) and interest on such
Debt Securities on the dates such payments are due (which
may include one or more redemption dates designated by the
Corporation) and any mandatory sinking fund or analogous
payments thereon in accordance with the terms of such Debt
Securities. Such a trust may only be established if, among
other things, (i) no Event of Default or event which with
the giving of notice or lapse of time, or both, would become
an Event of Default under the Indenture shall have occurred
and be continuing on the date of such deposit, (ii) such
deposit will not cause the Trustee to have any conflicting
interest with respect to other securities of the Corporation
and (iii) the Company shall have delivered an Opinion of
Counsel to the effect that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a
result of such deposit or defeasance and will be subject to
Federal income tax in the same manner as if such defeasance
had not occurred.
The Corporation may exercise its defeasance option
with respect to such Debt Securities notwithstanding its
prior exercise of its covenant defeasance option. If the
Corporation exercises its defeasance option, payment of such
Debt Securities may not be accelerated because of an Event
of Default. If the Corporation exercises its covenant
defeasance option, payment of such Debt Securities may not
be accelerated by reference to the covenants noted under
clause (b) above. In the event the Corporation omits to
comply with its remaining obligations with respect to such
Debt Securities under the Applicable Indenture after
exercising its covenant defeasance option and such Debt
Securities are declared due and payable because of the
occurrence of any Event of Default, the amount of money and
U.S. Government Obligations on deposit with the Trustee may
be insufficient to pay amounts due on the Debt Securities of
such series at the time of the acceleration resulting from
such Event of Default. However, the Corporation will remain
liable in respect of such payments. (Article Thirteen and
Article Fourteen of the Senior Indenture and the
Subordinated Indenture, respectively.)
MODIFICATION AND WAIVER
Modifications and amendments of each Indenture may
be made by the Corporation and the Trustee with the consent
of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Debt Securities of all
series issued under the Indenture and affected by the
modification or amendments (voting as a single class);
provided, however, that no such modification or amendment
may, without the consent of the Holders of all Debt
Securities affected thereby, (i) change the Stated Maturity
of the principal of, or any installment of principal of or
interest on, any Debt Security; (ii) reduce the principal
amount of, or the premium, if any, or (except as otherwise
provided in the Applicable Prospectus Supplement) interest
on, any Debt Security (including in the case of an Original
Issue Discount Debt Security the amount payable upon
acceleration of the maturity thereof); (iii) change the
place or currency of payment of principal of, premium, if
any, or interest on any Debt Security; (iv) impair the right
to institute suit for the enforcement of any payment on any
Debt Security on or after the Stated Maturity thereof (or in
the case of redemption, on or after the Redemption Date);
(v) in the case of the Subordinated Indenture, modify the
subordination provisions in a manner adverse to the Holders
of the Subordinated Debt Securities; or (vi) reduce the
percentage of the principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture or
for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults. (Section 9.2)
The Holders of at least a majority of the
aggregate principal amount of the Outstanding Debt
Securities of any series of Senior Debt Securities may, on
behalf of all Holders of that series, waive compliance by
the Corporation with certain restrictive provisions of the
Senior Indenture. (Section 10.8) There is no comparable
provision in the Subordinated Indenture. The Holders of a
majority of the aggregate principal amount of the Senior
Debt Securities or the Subordinated Debt Securities may, on
behalf of all Holders of the Senior Debt Securities or the
Subordinated Debt Securities, respectively, waive any past
default under the Applicable Indenture, except a default in
the payment of principal, premium or interest or in the
performance of certain covenants. (Section 5.13)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Corporation may not consolidate with or merge
into any other Person or transfer or lease its assets
substantially as an entirety to any Person and may not
permit any Person to merge into or consolidate with the
Corporation or transfer or lease its assets substantially as
an entirety to the Corporation, unless (i) any successor or
purchaser is a corporation organized under the laws of the
United States of America, any State or the District of
Columbia, and any such successor or purchaser expressly
assumes the Corporation's obligations on the Debt Securities
under a supplemental Indenture, and (ii) (a) in the case of
Senior Debt Securities, immediately after giving effect to
the transaction no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing and (b),
in the case of any series of Subordinated Debt Securities,
no Event of Default that would permit the Trustee or the
Holders to accelerate the Corporation's obligation to pay
the principal of such Subordinated Debt Securities shall
have occurred and be continuing. The Trustee may receive an
Opinion of Counsel as conclusive evidence of compliance with
these provisions. (Article VIII)
CONVERSION
The holders of Subordinated Debt Securities of a
specified series that are convertible into Equity Securities
("Subordinated Convertible Debt Securities") may be entitled
or, if so provided in the Applicable Prospectus Supplement,
may be required at such time or times specified in the
Applicable Prospectus Supplement relating to such
Subordinated Convertible Debt Securities, subject to prior
redemption, repayment, or repurchase, to convert any
Subordinated Convertible Debt Securities of such series into
Equity Securities, at the conversion price set forth in such
Applicable Prospectus Supplement, subject to adjustment and
to such other terms as are set forth in such Applicable
Prospectus Supplement. No separate consideration will be
received for any Equity Securities issued upon conversion of
Subordinated Convertible Debt Securities.
RISK FACTORS OF DEBT SECURITIES DENOMINATED IN FOREIGN
CURRENCIES
Debt Securities denominated or payable in foreign
currencies may entail significant risks. These risks
include, without limitation, the possibility of significant
fluctuations in the foreign currency market, the imposition
of foreign exchange controls, and potential illiquidity in
the secondary market. These risks will vary depending upon
the currency involved. These risks may be more fully
described in the Applicable Prospectus Supplement.
GLOBAL SECURITIES
Debt Securities of a series may be issued in the
form of one or more Global Securities that will be deposited
with a Depositary or its nominee identified in the
Applicable Prospectus Supplement. In such a case, one or
more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the
aggregate principal amount of Outstanding Debt Securities of
the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in
part for Debt Securities in definitive registered form, a
Global Security may not be registered for transfer or
exchange except as a whole by the Depositary for such Global
Security to a nominee or such Depositary and except in the
circumstances described in the Applicable Prospectus
Supplement. (Sections 2.4 and 3.5)
The specific terms of the depositary arrangement
with respect to any portion of a series of Debt Securities
to be represented by a Global Security will be described in
the Applicable Prospectus Supplement.
CONCERNING THE TRUSTEE
SunTrust Bank, Atlanta is a Trustee under the
Indentures. The Trustee performs services for the
Corporation in the ordinary course of business.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the
Preferred Stock sets forth certain general terms and
provisions of the Preferred Stock to which any Prospectus
Supplement may relate (the "Preferred Stock"). Certain
terms of any series of the Preferred Stock offered by any
Prospectus Supplement will be described in the Prospectus
Supplement relating to such series of the Preferred Stock.
If so indicated in the Prospectus Supplement, the terms of
any such series may differ from the terms set forth below.
The description of certain provisions of the Preferred Stock
set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in
its entirety by reference to the Articles of Amendment to
the Corporation's Articles of Incorporation (the "Articles
of Incorporation") relating to each series of the Preferred
Stock which will be filed with the Commission at or prior to
the time of the offering of such series of Preferred Stock.
GENERAL
Under the Corporation's Articles of Incorporation,
the Board of Directors of the Corporation is authorized
without further shareholder action to provide for the
issuance of up to 10,000,000 shares of Class A voting
Preferred Stock and 10,000,000 shares of Class B non-voting
Preferred Stock, in each case without par value, in one or
more series, with Class A Preferred Stock having full voting
rights and Class B Preferred Stock having no voting rights
and with relative preferences and rights as shall be set
forth in resolutions providing for the issue thereof adopted
by the Board of Directors or a duly authorized committee
thereof except that all shares of the same class shall be
identical except for the following relative rights and
preferences: (i) the rate of dividend; (ii) redemption
rights and the terms and conditions of such rights; (iii)
the amount payable upon liquidation; (iv) sinking fund
provisions; and (v) the terms and conditions, if any, of
conversion. The Corporation may amend from time to time its
Articles of Incorporation to increase the number of
authorized shares of Preferred Stock. Any such amendment
would require the approval of the holders of a majority of
the outstanding shares of Common Stock, and the approval of
the holders of a majority of the outstanding shares of all
series of Preferred Stock voting together as a single class.
As of the date of this Prospectus, the Corporation has no
shares of Preferred Stock outstanding.
Under regulations adopted by the Federal Reserve
Board, if the holders of any series of Preferred Stock
become entitled to vote for the election of directors
because dividends on such series are in arrears as described
under "Voting Rights" below, such series may then be deemed
a "class of voting securities" and a holder of 25 percent or
more of such series (or a holder of 5 percent or more if it
otherwise exercises a "controlling influence" over the
Corporation) may then be subject to regulation as a bank
holding company in accordance with the BHCA. In addition,
at such time as such series is deemed a class of voting
securities, (i) any other bank holding company may be
required to obtain the prior approval of the Federal Reserve
Board under the BHCA to acquire or retain 5 percent or more
of such series and (ii) any person other than a bank holding
company may be required to obtain the prior approval of the
Federal Reserve Board under the Change in Bank Control Act
to acquire or retain ten percent or more of such series.
The Preferred Stock shall have the dividend,
liquidation, redemption and voting rights set forth below
unless otherwise provided in the Prospectus Supplement
relating to a particular series of the Preferred Stock.
Reference is made to the Prospectus Supplement relating to
the particular series of the Preferred Stock offered thereby
for specific terms, including: (i) the title and stated
value per share of such Preferred Stock and the number of
shares offered; (ii) the price at which such Preferred Stock
will be issued; (iii) the dividend rate (or method of
calculation), the dates on which dividends shall be payable
and the dates from which dividends shall commence to
cumulate; (iv) any redemption or sinking fund provisions of
such Preferred Stock; (v) the terms of conversion, if any;
and (vi) any additional dividend, liquidation, redemption,
sinking fund and other rights, preferences, privileges,
limitations and restrictions of such Preferred Stock.
The Preferred Stock will, when issued, be fully
paid and nonassessable. Unless otherwise specified in the
Prospectus Supplement relating to a particular series of the
Preferred Stock, each series of the Preferred Stock will
rank on a parity in all respects with any outstanding
Preferred Stock of the Corporation and each other series of
Preferred Stock.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will
be entitled to receive, when, as and if declared by the
Board of Directors of the Corporation, out of assets of the
Corporation legally available therefor, cash dividends at
such rates and on such dates as are set forth in the
Prospectus Supplement relating to such series of the
Preferred Stock. Such rate may be fixed or variable or
both. Each such dividend will be payable to the holders of
record as they appear on the stock books of the Corporation
on such record dates as will be fixed by the Board of
Directors of the Corporation or a duly authorized committee
thereof. Dividends on any series of the Preferred Stock
shall be cumulative, so that if for any period the same
shall not be paid, the right thereto shall accumulate as
against the Common Stock, and all arrears so accumulated
shall be paid before any dividend shall be paid upon the
Common Stock.
No full dividends will be declared or paid or set
apart for payment on the Preferred Stock of any series
ranking, as to dividends, on a parity with or junior to any
series of Preferred Stock for any period unless full
dividends have been or contemporaneously are declared and
paid, or declared and a sum sufficient for the payment
thereof set apart for such payment, on such series of
Preferred Stock for the then-current dividend payment period
and all other dividend payment periods terminating on or
before the date of payment of such full dividends. When
dividends are not paid in full upon any series of the
Preferred Stock and any other Preferred Stock ranking on a
parity as to dividends with such series of the Preferred
Stock, all dividends declared upon such series of the
Preferred Stock and any other Preferred Stock ranking on a
parity as to dividends will be declared pro rata so that the
amount of dividends declared per share on such series of the
Preferred Stock and such other Preferred Stock will in all
cases bear to each other the same ratio that accrued
dividends per share on such series of the Preferred Stock
and such other Preferred Stock bear to each other. Except
as provided in the preceding sentence, unless full
dividends, including accumulations, if any, in respect of
prior dividend payment periods, on all outstanding shares of
any series of the Preferred Stock have been paid, no
dividends (other than in shares of Common Stock or another
stock ranking junior to such series of the Preferred Stock
as to dividends and upon liquidation ) will be declared or
paid or set aside for payment or other distributions made
upon the Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Preferred Stock as
to dividends or upon liquidation, nor will any Common Stock
or any stock of the Corporation ranking junior to or on a
parity with such series of the Preferred Stock as to
dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be
paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the
Corporation. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.
The amount of dividends payable for each dividend
period will be computed by annualizing the applicable
dividend rate and dividing by the number of dividend periods
in a year, except that the amount of dividends payable for
the initial dividend period or any period shorter than a
full dividend period shall be computed on the basis of 30-
day months, a 360-day year and the actual number of days
elapsed in the period.
Each series of Preferred Stock will be entitled to
dividends as described in the Prospectus Supplement relating
to such series, which may be based upon one or more methods
of determination. Different series of the Preferred Stock
may be entitled to dividends at different rates or based
upon different methods of determination.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation,
the holders of each series of Preferred Stock will be
entitled to receive out of assets of the Corporation
available for distribution to shareholders, before any
distribution of assets is made to holders of Common Stock or
any other class of stock ranking junior to such series of
the Preferred Stock upon liquidation, liquidating
distributions in the amount set forth in the Prospectus
Supplement relating to such series of the Preferred Stock
plus an amount equal to accrued and unpaid dividends for the
then-current dividend period and for all dividend periods
prior thereto. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation,
the amounts payable with respect to the Preferred Stock of
any series and any other shares of stock of the Corporation
ranking as to any such distribution on a parity with such
series of the Preferred Stock are not paid in full, the
holders of the Preferred Stock of such series and of such
other shares will share ratably in any such distribution of
assets of the Corporation in proportion to the full
respective preferential amounts to which they are entitled.
After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of such
series of Preferred Stock will have no right or claim to any
of the remaining assets of the Corporation. Neither the
sale of all or substantially all of the property or business
of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation shall be
deemed to be a dissolution, liquidation or winding up,
voluntarily or involuntarily, of the Corporation.
REDEMPTION
A series of the Preferred Stock may be redeemable,
in whole or in part, at the option of the Corporation, and
may be subject to mandatory redemption pursuant to a sinking
fund, in each case upon terms, at the times and at the
redemption prices set forth in the Prospectus Supplement
relating to such series.
The Prospectus Supplement relating to a series of
Preferred Stock which is subject to mandatory redemption
shall specify the number of shares of such series of
Preferred Stock which shall be redeemed by the Corporation
in each year commencing after a date to be specified, at a
redemption price per share to be specified, together with an
amount equal to any accrued and unpaid dividends thereon to
the date of redemption. The redemption price may be payable
in cash, capital stock or in cash received from the net
proceeds of the issuance of capital stock of the
Corporation, as specified in the Prospectus Supplement
relating to such series of Preferred Stock.
If fewer than all the outstanding shares of the
Preferred Stock are to be redeemed, whether by mandatory or
optional redemption, the selection of the shares to be
redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors of the Corporation (or
a duly authorized committee thereof) or by any other method
which may be determined by the Board of Directors (or such
committee) to be equitable. From and after the redemption
date (unless default shall be made by the Corporation in
providing for the payment of the redemption price),
dividends shall cease to accrue on the shares of Preferred
Stock called for redemption and all rights of the holders
thereof (except the right to receive the redemption price)
shall cease.
In the event that full dividends, including
accumulations on any series of the Preferred Stock, have not
been paid, such series of the Preferred Stock may not be
redeemed in part and the Corporation may not purchase or
acquire any shares of such series of the Preferred Stock
otherwise than pursuant to a purchase or exchange offer made
on the same terms to all holders of such series of the
Preferred Stock.
VOTING RIGHTS
The holders of Class A Preferred Stock will be
entitled to full voting rights and the holders of Class B
Preferred Stock will have no voting rights, except as
specifically required by applicable law. Except as
indicated in the Prospectus Supplement relating to a
particular series of Preferred Stock, each such share will
be entitled to one vote on matters on which holders of such
series of the Preferred Stock are entitled to vote.
The affirmative vote or consent of the holders of
at least a majority of the outstanding shares of any series
of Preferred Stock, voting as a class, will be required for
any amendment of the Corporation's Articles of Incorporation
(or any certificate amendatory thereof or supplemental
thereto relating to any series of the Preferred Stock) which
will adversely affect the powers, preferences, privileges or
rights of such series of the Preferred Stock. The
affirmative vote or consent of the holders of shares
representing at least a majority of the outstanding shares
of any series of Preferred Stock and any other series of
Preferred Stock of the Corporation ranking on parity with
such series of the Preferred Stock as to dividends or upon
liquidation, voting as a single-class without regard to
series, will be required to authorize the creation of, or
reclassify any authorized stock of the Corporation into, or
issue or authorize any obligation or security convertible
into or evidencing a right to purchase, any additional class
or series of stock having rights or preferences ranking
prior, superior or substantially equal to such series of the
Preferred Stock as to dividends or upon liquidation.
In addition to the foregoing voting rights, under
the Mississippi Business Corporation Act as now in effect,
any Articles of Amendment to the Articles of Incorporation
which would increase the number of authorized shares of
Preferred Stock of the Corporation would require the
approval of the holders of a majority of the outstanding
shares of Common Stock , and the approval of the holders of
a majority of the outstanding shares of all series of
Preferred Stock voting together as a single class.
CONVERSION
The holders of a specified series of Preferred
Stock may be entitled, or if so provided in the Articles of
Amendment to the Articles of Incorporation, may be required,
to convert such shares into Common Stock or, at the option
of the Corporation, other debt securities of the
Corporation, at such conversion price or prices and on such
other terms as may be set forth in the Applicable Prospectus
Supplement relating to such series of Preferred Stock.
DEPOSITARY SHARES
General. The Corporation may, at its option,
elect to offer fractional shares ("Depositary Shares") of
Preferred Stock, rather than full shares of Preferred Stock.
In the event such option is exercised, the Corporation will
issue to the public receipts for Depositary Shares, each of
which will represent a fraction (to be set forth in the
Prospectus Supplement relating to a particular series of
Preferred Stock) of a share of a particular series of
Preferred Stock as described below.
The shares of any series of Preferred Stock
represented by Depositary Shares will be deposited under a
Deposit Agreement (the "Deposit Agreement") between the
Corporation and a bank or trust company selected by the
Corporation having its principal office in the United States
and having a combined capital and surplus of at least
$50,000,000 (the "Depositary"). Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share will be
entitled, in proportion to the applicable fraction of a
share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred
Stock represented thereby (including dividend, voting,
redemption and liquidation rights).
The Depositary Shares will be evidenced by
depositary receipts issued pursuant to the Deposit Agreement
("Depositary Receipts"). Depositary Receipts will be
distributed to those persons purchasing the fractional
shares of Preferred Stock in accordance with the terms of
the offering. Copies of the forms of Deposit Agreement and
Depositary Receipt are filed as exhibits to the Registration
Statement of which this Prospectus is a part, and the
following summary is qualified in its entirety by reference
to such exhibits.
Pending the preparation of definitive engraved
Depositary Receipts, the Depositary may, upon the written
order of the Corporation, issue temporary Depositary
Receipts substantially identical to (and entitling the
holders thereof to all the rights pertaining to) the
definitive Depositary Receipts but not in definitive form.
Definitive Depositary Receipts will be prepared thereafter
without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary
Receipts at the Corporation's expense.
Dividends and Other Distributions. The Depositary
will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to
the record holders of Depositary Shares relating to such
Preferred Stock in proportion to the numbers of such
Depositary Shares owned by such holders.
In the event of a distribution other than in cash,
the Depositary will distribute property received by it to
the record holders of Depositary Shares entitled thereto,
unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may,
with the approval of the Corporation, sell such property and
distribute the net proceeds from such sale to such holders.
Redemption of Depositary Shares. If a series of
Preferred Stock represented by Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from
the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of Preferred
Stock held by the Depositary. The redemption price per
Depositary Share will be equal to the applicable fraction of
the redemption price per share payable with respect to such
series of the Preferred Stock. Whenever the Corporation
redeems shares of Preferred Stock held by the Depositary,
the Depositary will redeem as of the same redemption date
the number of Depositary Shares representing shares of
Preferred Stock so redeemed. If fewer than all the
Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed will be selected by lot or pro rata as may be
determined by the Depositary.
Voting the Preferred Stock. Upon receipt of
notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the
record holders of the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary
Shares on the record date (which will be the same date as
the record date for the Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of the Preferred Stock
represented by such holder's Depositary Shares. The
Depositary will endeavor, insofar as practicable, to vote
the amount of the Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and
the Corporation will agree to take all action which may be
deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will abstain from
voting shares of the Preferred Stock to the extent it does
not receive specific instructions from the holder of
Depositary Shares representing such Preferred Stock.
Amendment and Termination of the Deposit
Agreement. The form of Depositary Receipt evidencing the
Depositary Shares and any provision of the Deposit Agreement
may at any time be amended by agreement between the
Corporation and the Depositary. However, any amendment
which materially and adversely alters the rights of the
holders of Depositary Shares will not be effective unless
such amendment has been approved by the holders of at least
a majority of the Depositary Shares then outstanding. The
Deposit Agreement will only terminate if (i) all outstanding
Depositary Shares have been redeemed or (ii) there has been
a final distribution in respect of the Preferred Stock in
connection with any liquidation, dissolution or winding up
of the Corporation and such distribution has been
distributed to the holders of Depositary Receipts.
Charges of Depositary. The Corporation will pay
all transfer and other taxes and governmental charges
arising solely from the existence of the depositary
arrangements. The Corporation will pay charges of the
Depositary in connection with the initial deposit of the
Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Receipts will pay other transfer and
other taxes and governmental charges and such other charges
as are expressly provided in the Deposit Agreement to be for
their accounts.
Miscellaneous. The Depositary will forward all
reports and communications from the Corporation which are
delivered to the Depositary and which the Corporation is
required or otherwise determines to furnish to the holders
of the Preferred Stock.
Neither the Depositary nor the Corporation will be
liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its
obligations under the Depositary Agreement. The obligations
of the Corporation and the Depositary under the Deposit
Agreement will be limited to performance in good faith of
their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory
indemnity is furnished. They may rely upon written advice
of counsel or accountants, or upon information provided by
persons presenting Preferred Stock for deposit, holders of
Depositary Receipts or other persons believed to be
competent and on documents believed to be genuine.
Resignation and Removal of Depositary. The
Depositary may resign at any time by delivering to the
Corporation notice of its election to do so, and the
Corporation may at any time remove the Depositary, any such
resignation or removal to take effect upon the appointment
of a successor Depositary and its acceptance of such
appointment. Such successor Depositary must be appointed
within 60 days after delivery of the notice of resignation
or removal and must be a bank or trust company having its
principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
TRANSFER AGENT AND REGISTRAR
Deposit Guaranty National Bank will be the
transfer agent, registrar and dividend disbursement agent
for the Preferred Stock. The registrar for shares of
Preferred Stock will send notices to shareholders of any
meetings at which holders of the Preferred Stock have the
right to elect directors of the Corporation or to vote on
any other matter.
DESCRIPTION OF COMMON STOCK
The description of certain provisions of the
Common Stock set forth below does not purport to be complete
and is subject to and qualified in its entirety by reference
to the Articles of Incorporation and the By-Laws of the
Corporation which are exhibits to the Registration
Statement.
GENERAL
The Corporation's Common Stock consists of
50,000,000 authorized shares, no par value, of which there
were 19,549,143 shares outstanding as of September 30, 1995.
The Common Stock is quoted on the Nasdaq National Market
System. The transfer agent and registrar for the Common
Stock is Deposit Guaranty National Bank.
Shares of Common Stock of the Corporation may be
issued from time to time, in such amounts and proportion and
for such consideration as may be fixed by the Board of
Directors of the Corporation. No holder of Common Stock has
any preemptive or preferential rights to purchase or to
subscribe for any shares of capital stock or other
securities which may be issued by the Corporation. The
Common Stock has no redemptive or sinking fund provisions
applicable thereto. Common Stock does not have any
conversion rights. The rights of holders of Common Stock
will be subject to, and may be adversely affected by, the
rights of holders of any Preferred Stock that may be issued
in the future.
The Corporation may issue authorized but unissued
Common Stock in connection with several employee benefit and
stock option and incentive plans maintained by the
Corporation or its subsidiaries.
The outstanding Common Stock is fully paid and
non-assessable and future issuances of Common Stock, when
fully paid for, will be non-assessable.
DIVIDENDS
When, as, and if dividends, payable in cash,
stock, or other property, are declared by the Board of
Directors of the Corporation out of funds legally available
therefor, the holders of Common Stock are entitled to share
equally, share for share, in such dividends. The payment of
dividends on the Common Stock is subject to the prior
payment of dividends on any shares of the Preferred Stock
outstanding.
VOTING
Deposit Guaranty. Pursuant to the Mississippi
Business Corporation Act and the Corporation's Bylaws, each
outstanding share of the Corporation's stock is entitled to
one (1) vote on each matter submitted to a vote. However,
in connection with the election of directors, holders of
Common Stock of the Corporation have cumulative voting
rights. Pursuant to the Corporation's Bylaws, every
shareholder entitled to vote in the election of directors
shall have the right to vote, in person or by proxy, the
number of shares owned by him for as many persons as there
are directors to be elected, or to cumulate his votes by
giving one (1) candidate the number of votes equal to the
number of directors to be elected multiplied by the number
of his shares, or by distributing such votes on the same
principle among any number of candidates.
LIQUIDATION
In the event of any liquidation, dissolution, or
winding up of the Corporation, whether voluntary or
involuntary, the holders of the Common Stock are entitled to
receive, on a share for share basis, any assets or funds of
the Corporation which are distributable to its holders of
Common Stock upon such events, subject to the prior rights
of creditors of the Corporation and holders of any
outstanding shares of Preferred Stock.
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue, separately or together
with any Debt Securities, Preferred Stock, Common Stock, or
Depositary Shares, Securities Warrants for the purchase of
other Debt Securities, Preferred Stock, Common Stock, or
Depositary Shares (collectively, the "Underlying
Securities"). The Securities Warrants will be issued under
a warrant agreement (a "Securities Warrant Agreement") to be
entered into between the Corporation and a bank or trust
company, as warrant agent (the "Securities Warrant Agent"),
all as set forth in the Applicable Prospectus Supplement
relating to the particular issue of Securities Warrants.
The form of Securities Warrant Agreement, including the form
of certificates representing the Securities Warrants
("Securities Warrant Certificates"), reflecting the
alternative provisions to be included in the Securities
Warrant Agreements that will be entered into with respect to
particular offerings of Securities Warrants, is filed as an
exhibit to the Registration Statement. The following
summaries of certain provisions of the Securities Warrant
Agreement and the Securities Warrant Certificates, which are
filed as exhibits to the Registration Statement, do not
purport to be complete and are subject to, and are qualified
in their entirety by reference to, all of the provisions of
the Securities Warrant Agreement and the Securities Warrant
Certificates, respectively, including the definitions
therein of certain terms. Wherever defined terms of the
Securities Warrant Agreement are referred to, it is intended
that such defined terms shall be incorporated herein by
reference.
GENERAL
The Applicable Prospectus Supplement relating to
the particular issue of Securities Warrants offered thereby
will describe the terms of the offered Securities Warrants,
the Securities Warrant Agreement relating to the offered
Securities Warrants, and the Securities Warrant Certificates
representing the offered Securities Warrants, including the
following where applicable: (1) if the Securities Warrants
are offered for separate consideration, the offering price
and the currency for which Securities Warrants may be
purchased; (2) the title, aggregate principal amount,
currency, and terms of the series of Debt Securities
purchasable upon exercise of the Debt Warrants and the price
at which such Debt Securities may be purchased upon such
exercise; (3) the title, number of shares, stated value, and
terms (including, without limitation, liquidation, dividend,
conversion, redemption, and voting rights) of the series of
Preferred Stock purchasable upon exercise of Preferred Stock
Warrants and the price at which such number of shares of
Preferred Stock of such series may be purchased upon such
exercise; (4) the number of Common Stock purchasable upon
the exercise of Common Stock Warrants and the price at which
such number of Common Stock may be purchased upon such
exercise; (5) the number of Depositary Shares purchasable
upon the exercise of Depositary Share Warrants, the terms of
the Preferred Stock which the Depositary Shares represent
and the price at which such number of Depositary Shares may
be purchased upon such exercise; (6) the date, if any, on
and after which the offered Securities Warrants and the
related Debt Securities, Preferred Stock, Common Stock
and/or Depositary Shares will be separately transferable;
(7) the time or times at which, or period or periods during
which, the offered Securities Warrants may be exercised and
the final date on which the Offered Securities Warrants may
be exercised (the "Expiration Date"); (8) a discussion of
the specific United States Federal income tax, accounting,
and other considerations applicable to the Securities
Warrants; (9) the location where the offered Securities
Warrants represented by the Securities Warrant Certificates
may be transferred and registered; and (10) any other terms
of the offered Securities Warrants.
Securities Warrant Certificates will be
exchangeable on the terms specified in the Applicable
Prospectus Supplement for new Securities Warrant
Certificates of different denominations evidencing the same
aggregate number of Warrants of the same title, and may be
transferred in whole or in part on the terms specified in
the Applicable Prospectus Supplement.
Prospective purchasers of Securities Warrants
should be aware that special U.S. federal income tax,
accounting and other considerations may be applicable to
instruments such as Securities Warrants. The Applicable
Prospectus Supplement relating to any issue of Securities
Warrants will describe such considerations.
EXERCISE OF WARRANTS
Each Securities Warrant will entitle the holder to
purchase the principal amount of or number of Underlying
Securities provided for therein, at such exercise price as
shall in each case be set forth in, or be determinable from,
the Applicable Prospectus Supplement relating to the
Securities Warrants, by payment of such exercise price (the
"Warrant Price") in full in the currency and in the manner
specified in the Applicable Prospectus Supplement.
Securities Warrants may be exercised at any time at or
before 5:00 P.M., New York City time on the Expiration Date
(or such later date to which such Expiration Date may be
extended by the Corporation), and unexercised Securities
Warrants will become void at such time. Securities Warrants
may be exercised at the corporate trust office of the
Securities Warrant Agent or any other office indicated in
the Applicable Prospectus Supplement relating to the
Securities Warrants.
Upon receipt at the corporate trust office of the
Securities Warrant Agent or any other office indicated in
the Applicable Prospectus Supplement of (i) payment of the
Warrant Price and (ii) the form of election to purchase set
forth on the reverse side of the Securities Warrant
Certificate properly completed and duly executed, the
Corporation will, as soon as practicable, issue the
Underlying Securities purchasable upon such exercise. If
fewer than all of the Securities Warrants represented by
such Securities Warrant Certificate are exercised, a new
Securities Warrant Certificate will be issued for the
remaining number of unexercised Securities Warrants.
MODIFICATIONS
The Warrant Agreement may be supplemented or
amended by the Corporation and the Warrant Agent from time
to time, without the approval of any Holder (as defined in
the Warrant Agreement), in order to cure any ambiguity, to
correct or supplement any defective or inconsistent
provision contained therein, or to make any other provision
in regard to matters or questions arising thereunder that
the Corporation and the Warrant Agent may deem necessary or
desirable and which will not adversely affect the interests
of the Holders.
The Corporation and the Warrant Agent may also
modify or amend the Warrant Agreement and the Securities
Warrant Certificates with the consent of the Holders of not
fewer than a majority in number of the then outstanding
unexercised Warrants affected by such modification or
amendment, for any purpose, provided that no such
modification or amendment that shortens the period of time
during which the Warrants may be exercised, or otherwise
materially and adversely affects the exercise rights of the
Holders or reduces the percentage of Holders of outstanding
Warrants the consent of which is required for modification
or amendment of the Warrant Agreement or the Warrants may be
made without the consent of each Holder affected thereby.
COMMON STOCK WARRANT ADJUSTMENTS
The terms and conditions on which the Warrant
Price of and/or the number of Common Stock covered by a
Warrant to purchase Common Stock (a "Common Stock Warrant")
are subject to adjustment will be set forth in the Warrant
Agreement and the Applicable Prospectus Supplement. Such
terms will include provisions for adjusting the Warrant
Price and/or the number of Common Stock covered by such
Common Stock Warrant; the events requiring such adjustment;
the events upon which the Corporation may, in lieu of making
such adjustment, make proper provision so that the holder of
such Common Stock Warrant, upon exercise thereof, would be
treated as if such holder had exercised such Common Stock
Warrant prior to the occurrence of such events; and
provisions affecting exercise in the event of certain events
affecting the Common Stock.
MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS
If at any time there shall be a merger,
consolidation, sale, conveyance, transfer, lease, or other
disposition of substantially all of the assets of the
Corporation, then the successor or assuming corporation
shall succeed to and be substituted for the Corporation in,
and the Corporation will be relieved of any further
obligation under, the Warrant Agreement or the Warrants.
ENFORCEABILITY OF RIGHTS OF HOLDERS
The Warrant Agent will act solely as an agent of
the Corporation in acting under the Warrant Agreement and in
connection with any Warrant Certificate. The Warrant Agent
shall have no duty or responsibility in case of any default
by the Corporation in the performance of its covenants or
agreements contained in the Warrant Agreement or in any
Warrant Certificate. Each Holder may, without the consent
of the Warrant Agent, enforce by appropriate legal action,
on its own behalf, the Holder's right to exercise its
Warrants in the manner provided in the Warrant Agreement and
its Warrant Certificate.
NO RIGHTS AS HOLDERS OF UNDERLYING SECURITIES
Prior to the exercise of any Securities Warrants
to purchase Underlying Securities, holders of such
Securities Warrants will not have any of the rights of
holders of the Underlying Securities purchasable upon such
exercise, including, without limitation, the right to
receive the payment of principal of, or premium on, if any,
or interest, if any, dividends or distributions of any kind,
if any, on Underlying Securities, the right to enforce any
of the covenants in the Indentures, if applicable, or the
right to exercise any voting rights.
PLAN OF DISTRIBUTION
The Corporation may offer and sell Securities to
one or more underwriters, acting as principals for their own
accounts or as agents, for public offering and sale by them
or may sell Securities to investors directly or through
agents which may be affiliates of the Corporation. Any such
underwriter or agent involved in the offer and sale of the
Securities will be named in the related Prospectus
Supplement. The Corporation may also offer and sell
Securities to certain third parties upon the exercise of
options or on behalf of such third parties.
Underwriters may offer and sell the Securities at
a fixed price or prices, which may be changed, or from time
to time at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at
negotiated prices. The Corporation also may, from time to
time, authorize underwriters acting as agents to offer and
sell the Securities upon the terms and conditions set forth
in any Prospectus Supplement. In connection with the sale
of Securities, underwriters may be deemed to have received
compensation from the Corporation in the form of
underwriting discounts, concessions or commissions and may
also receive commissions from purchasers of Securities for
whom they may act as agents. Underwriters may sell
Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions
or commissions (which may be changed from time to time) from
the underwriters and/or from the purchasers for whom they
may act as agents.
The Securities will be new issues of securities
with no established trading market, other than the Common
Stock which are quoted on the Nasdaq National Market System.
Any Common Stock sold pursuant to a Prospectus Supplement
will be eligible for such quotation. It has not presently
been established whether the underwriters, if any, of any
Securities will make a market in such Securities. If a
market is made, it may be discontinued at any time without
notice. No assurance can be given as to the liquidity of
the trading market for the Securities.
Any underwriting compensation paid by the
Corporation to underwriters or agents in connection with the
offering of Securities and any discounts, concessions or
commissions allowed by underwriters to participating dealers
will be set forth in the Prospectus Supplement.
Underwriters, dealers and agents participating in the
distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by
them and any profit realized by them on resale of the
Securities may be deemed to be underwriting discounts and
commissions under the Securities Act. Under agreements that
may be entered into with the Corporation, underwriters,
dealers and agents who participate in the distribution of
the Securities may be entitled to indemnification by the
Corporation against certain civil liabilities, including
liabilities under the Securities Act or contribution with
respect to payments which the underwriters, dealers or
agents may be required to make in respect thereof.
Certain of the underwriters and their affiliates
may be customers of, engage in transactions with, and
perform services for, the Corporation and its subsidiaries
in the ordinary course of business.
LEGAL OPINIONS
The validity of the Securities offered hereby will
be passed upon for the Corporation, as shall be indicated in
the Applicable Prospectus Supplement, by Watkins Ludlam &
Stennis, 633 North State Street, Post Office Box 427,
Jackson, Mississippi 39205, and Skadden, Arps, Slate,
Meagher & Flom, 919 Third Avenue, New York, New York 10022,
counsel to the Corporation, and for the Underwriters by
counsel named in the Applicable Prospectus Summary.
EXPERTS
The consolidated financial statements of the
Corporation as of December 31, 1994 and 1993, and for each
of the years in the three-year period ended December 31,
1994, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants,
also incorporated by reference herein, and upon the
authority of said firm as experts in accounting and
auditing. The report of KPMG Peat Marwick LLP covering the
December 31, 1994, consolidated financial statements refers
to a change in the method of accounting for debt securities.
With respect to the unaudited interim financial
information for the periods ended September 30, 1995, June
30, 1995 and March 31, 1995, incorporated by reference
herein, the independent certified public accountants have
reported that they applied limited procedures in accordance
with professional standards for a review of such
information. However, their separate reports included in
the Corporation's quarterly report on Form 10-Q for the
quarters ended September 30, 1995, June 30, 1995 and March
31, 1995, incorporated by reference herein, state that they
did not audit and they do not express an opinion on that
interim financial information. Accordingly, the degree of
reliance on their reports on such information should be
restricted in light of the limited nature of the review
procedure applied. The accountants are not subject to the
liability provisions of section 11 of the Securities Act for
their reports on the unaudited interim financial information
because those reports are not a "report" or a "part" of the
registration statement prepared or certified by the
accountants within the meaning of section 7 and 11 of the
Securities Act.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and
distribution of the securities being registered other than
underwriting compensation are as follows:
SEC Registration Fee . . . . . . . . $60,000
Fees of Rating Agencies . . . . . . *
Printing and Engraving Expenses . . *
Legal Fees and Expenses . . . . . . *
Accounting Fees and Expenses . . . . *
Fees of Indenture Trustees . . . . . *
Transfer Agent and Registrar Fees . *
Blue Sky Fees and Expenses . . . . . *
Nasdaq Fees . . . . . . . . . . . . *
Miscellaneous . . . . . . . . . . . *
Total . . . . . . . . . . . . . . $
_________
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation is incorporated under the laws of
Mississippi. Subarticle E of Article 8 of the Mississippi
Business Corporation Act prescribes the conditions under
which indemnification may be obtained by a present or former
director or officer of the Corporation who incurs expenses
or liability as a consequence of matters arising out of his
activities as a director or officer.
Article Nine of the Corporation s Articles of
Incorporation also provides for indemnification of officers
and directors under certain circumstances. The Corporation
has purchased a liability policy which, subject to any
limitations set forth in the policy, indemnifies the
Corporation s directors and officers for damages that they
become legally obligated to pay as a result of any negligent
act, error or omission committed by such person in his
capacity as an officer or director.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
ITEM 16. EXHIBITS.
DESCRIPTION
(1)(a)* Form of Underwriting Agreement for Equity Securities.
(1)(b)* Form of Underwriting Agreement for Debt Securities.
(1)(c)* Form of Distribution Agreement.
(3)(a) Articles of Incorporation of Deposit Guaranty Corp.
(3)(b) Bylaws of Deposit Guaranty Corp.
(4)(a) Form of Senior Indenture, between Deposit
Guaranty Corp. and SunTrust Bank, Atlanta, as Trustee.
(4)(b) Form of Subordinated Indenture between
Deposit Guaranty Corp. and SunTrust Bank,
Atlanta, as Trustee.
(4)(c) Form of Senior Debt Securities (included in
Exhibit (4)(a) to this Registration Statement
and incorporated by reference).
(4)(d) Form of Subordinated Debt Securities
(included in Exhibit (4)(b) to this Registration Statement
and incorporated by reference).
(4)(e) Form of Warrant Agreement.
(4)(f) Form of Warrant Certificate (included in
Exhibit (4)(e) to this Registration Statement
and incorporated by reference).
(4)(g) Form of Deposit Agreement.
(4)(h) Form of Depositary Receipt (included in
Exhibit (4)(g) to this Registration Statement
and incorporated by reference).
(5)(a)* Opinion of Watkins Ludlam & Stennis as to the
legality of the securities to be registered.
(5)(b)* Opinion of Skadden, Arps, Slate, Meagher &
Flom as to the legality of the securities to
be registered.
(12) Computation of the Corporation s Consolidated
Ratios of Earnings to Fixed Charges and Combined
Fixed Charges and Preferred Stock Dividends.
(23)(a) Consent of KPMG Peat Marwick LLP.
(23)(b)* Consent of Watkins Ludlam & Stennis.
(23)(c)* Consent of Skadden, Arps, Slate, Meagher & Flom.
(25) Form T-1 Statement of Eligibility and
Qualifications under the Trust Indenture Act of
1939 of SunTrust Bank, Atlanta, as Trustee under
the Senior Indenture and the Subordinated
Indenture.
__________
* To be filed by amendment or on Form 8-K.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers
or sales are being made, a post-effective amendment to
this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) to include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement
or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii)
do not apply if the registration statement is on Form
S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) that, for the purpose of determining any
liability under the Securities Act of 1933, each post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) to remove from registration by means of
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby further undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 15
above, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the
Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against
public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Jackson, state of
Mississippi, on this 16th day of November, 1995.
DEPOSIT GUARANTY CORP.
By:/s/ E. B. Robinson, Jr.
-------------------------
E.B. Robinson, Jr.
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each
individual whose signature appears below constitutes and
appoints E.B. Robinson, Jr., Howard L. McMillan, Jr., Arlen
L. McDonald and J. Clifford Harrison, and each of them, his
true and lawful attorneys-in-fact and agents with full power
of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement and to file the same with all
exhibits thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he
might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them,
or their or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed by the
following persons in the capacities and on the date
indicated.
NAME TITLE DATE
/s/ E. B. Robinson, Jr. Chairman of the November 16, 1995
----------------------- Board and Director
E.B. Robinson, Jr. (Principal Execu-
tive Officer)
/s/ Howard L. McMillan, Jr. President and Director November 16, 1995
---------------------------
Howard L. McMillan, Jr.
/s/ Arlen L. McDonald Executive Vice November 16, 1995
--------------------------- President (Principal
Arlen L. McDonald Financial Officer)
/s/ Stephen E. Barker Controller (Principal November 16, 1995
--------------------------- Accounting Officer)
Stephen E. Barker
/s/ Michael B. Bemis Director November 16, 1995
---------------------------
Michael B. Bemis
---------------------------- Director
Richard H. Bremer
/s/ W. Henry Holmon, Jr. Director November 16, 1995
----------------------------
W. Henry Holmon, Jr.
/s/ Warren A. Hood, Jr. Director November 16, 1995
----------------------------
Warren A. Hood, Jr.
/s/ Charles L. Irby Director November 16, 1995
----------------------------
Charles L. Irby
/s/ Richard D. McRae, Jr. Director November 16, 1995
----------------------------
Richard D. McRae, Jr.
/s/ W. R. Newman, III Director November 16, 1995
----------------------------
W.R. Newman, III
/s/ John N. Palmer Director November 16, 1995
-----------------------------
John N. Palmer
----------------------------- Director
Steven C. Walker
---------------------------- Director
J. Kelley Williams
INDEX TO EXHIBITS
FORM S-3 SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NUMBER
(1)(a)* Form of Underwriting
Agreement for Debt
Securities.
(1)(b)* Form of Underwriting
Agreement for Equity
Securities.
(1)(c)* Form of Distribution
Agreement.
(3)(a) Articles of Incorporation of
Deposit Guaranty Corp.
(3)(b) Bylaws of Deposit Guaranty
Corp.
(4)(a) Form of Senior Indenture,
between Deposit Guaranty
Corp. and SunTrust Bank,
Atlanta, as Trustee.
(4)(b) Form of Subordinated
Indenture between Deposit
Guaranty Corp. and SunTrust
Bank, Atlanta, as Trustee.
(4)(c) Form of Senior Debt
Securities (included in
Exhibit (4)(a) to this
Registration Statement and
incorporated by reference).
(4)(d) Form of Subordinated Debt
Securities (included in
Exhibit (4)(b) to this
Registration Statement and
incorporated by reference).
(4)(e) Form of Warrant Agreement.
(4)(f) Form of Warrant Certificate
(included in Exhibit (4)(e)
to this Registration
Statement and incorporated
by reference).
(4)(g) Form of Deposit Agreement.
(4)(h) Form of Depositary Receipt
(included in Exhibit (4)(g)
to this Registration
Statement and incorporated
by reference).
(5)(a)* Opinion of Watkins Ludlam &
Stennis as to the legality
of the securities to be
registered.
(5)(b)* Opinion of Skadden, Arps,
Slate, Meagher & Flom as to
the legality of the
securities to be registered.
(12) Computation of the
Corporation s Consolidated
Ratios of Earnings to Fixed
Charges and Combined Fixed
Charges and Preferred Stock
Dividends.
(23)(a) Consent of KPMG Peat Marwick LLP.
(23)(b)* Consent of Watkins Ludlam &
Stennis.
(23)(c)* Consent of Skadden, Arps,
Slate, Meagher & Flom.
(25) Form T-1 Statement of
Eligibility and
Qualifications under the
Trust Indenture Act of 1939
of SunTrust Bank, Atlanta,
as Trustee under the Senior
Indenture and the
Subordinated Indenture.
__________
* To be filed by amendment or on Form 8-K.
ARTICLES OF INCORPORATION
DEPOSIT GUARANTY CORP.
ARTICLES OF INCORPORATION
DEPOSIT GUARANTY CORP.
FIRST: The name of the Corporation is DEPOSIT GUARANTY CORP.
SECOND: The period of its duration is ninety-nine (99)
years.
THIRD: The specific purposes for which the Corporation is
organized stated in general terms are:
To acquire, receive, hold and own, to the extent not
prohibited by law, the stock and securities of commercial banks
with or without trust powers, and the stock and securities of
other businesses which are incidental or related to the business
of banking or to the furnishing of financial services.
To acquire the whole or any part of the business, goodwill,
rights or other assets of any corporation, firm, organization,
association or other entity, and to undertake or assume in
connection therewith the whole or any part of the liabilities and
obligation thereof, to effect any such acquisition in whole or in
part by delivery of cash or other property, including securities
issued by the Corporation, or by any other lawful means.
To cause to be organized one or more corporations, firms,
organizations, associations or other entities and to cause the
same to be dissolved, wound up, liquidated, merged or
consolidated.
To make, establish and maintain investments in securities
and to supervise and manage such investments.
To furnish goods and to render service, assistance, and
advice to, and act as representative or agent in the management
and operation of any corporation, firm, organization, association
or other entity.
To engage in any business activity not prohibited by law.
The Corporation shall possess and may exercise all powers
necessary or convenient to effect any or all of the foregoing
purposes, and the enumeration herein of any specific purposes or
powers shall not be held to limit or restrict in any manner the
exercise by the Corporation of the general powers now or
hereafter conferred by the laws of the State of Mississippi upon
corporations formed under the Mississippi Business Corporation
Act.
Article FOURTH was adopted by the shareholders of the
Corporation on April 21, 1987.
FOURTH: The aggregate number of shares which the Corporation
is authorized to issue is 70,000,000 divided into three (3)
classes. The designation of each class, the number of shares of
each class and the par value, if any, of each class are as
follows:
Number of Shares Class Par Value, if any
50,000,000 Common Stock No par value
10,000,000 Class A Voting Preferred No par value
10,000,000 Class B Non-Voting Preferred No par value
The preferences and relative rights in respect of the shares
of each class and the variations in the relative rights and
preferences as between series of any preferred class in series are
as follows:
Each share of Common Stock and of Class A Voting Preferred
stock shall entitle the holder thereof to full voting rights. A
holder of Class B Non-Voting Preferred stock shall have no voting
rights as a holder of such stock, except as specifically required
by law.
The holders of Class A Voting Preferred stock and Class B
Non-Voting Preferred stock (together "preferred stock") shall be
entitled to receive dividends, subject to statutory restrictions,
when and as declared by the Board of Directors. Such dividends
shall be payable at such periods as shall be fixed by the Board of
Directors at the rate specified in the resolution of the Board of
Directors authorizing the issuance of the particular series of
preferred stock, and no more, before any dividend shall be paid or
set apart for payment upon the Common Stock.
Dividends on the preferred stock shall be cumulative, so that
if for any period the same shall not be paid, the right thereto
shall accumulate as against the Common Stock, and all arrears so
accumulated shall be paid before any dividend shall be paid upon
the Common Stock.
Whenever all accumulated dividends on the outstanding
preferred stock for all previous periods shall have been declared
and shall have become payable, and the Corporation shall have paid
such accumulated dividends for such previous periods, or shall
have set aside from its legally available funds a sum sufficient
therefor, the Board of Directors may declare dividends on the
Common Stock, payable then or thereafter out of any remaining
legally available funds.
Each class of preferred stock shall be divided into and
issued from time to time by resolution of the Board of Directors
in one or more series, each series being so designated as to
distinguish the shares thereof from the shares of all other series
and classes. All or any of the series of any such class and the
variations and the relative rights and preferences as between
different series may be fixed and determined by resolution of the
Board of Directors, but all shares of the same class shall be
identical except as to the following relative rights and
preferences, as to which there may be variations between different
series:
(a) the rate of dividend;
(b) whether shares may be redeemed and, if so, the
redemption price and terms and conditions of redemption;
(c) the amount payable upon shares in the event of voluntary
and involuntary liquidation;
(d) sinking fund provisions, if any, for the redemption or
purchase of shares; and
(e) the terms and conditions, if any, on which shares may be
converted.
FIFTH: The shareholders of this Corporation shall have no
preemptive right to acquire unissued or treasury shares of the
Corporation, or obligations of the Corporation convertible into
such shares.
Articles SIXTH through NINTH were adopted by the shareholders
of the Corporation on April 15, 1986:
SIXTH: The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors
consisting of not less than nine nor more than twenty-five
directors, the exact number of directors to be determined from
time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors. The directors shall be
divided into three (3) classes, designated Class A, Class B and
Class C. Each class shall consist, as nearly as may be possible,
of one-third of the total number of directors constituting the
entire Board of Directors. Directors shall be elected only at
annual meetings of stockholders, and any vacancy in the Board of
Directors, however created, shall be filled at the annual meeting
succeeding the creation of such vacancy. At the 1986 annual
meeting of stockholders, Class A directors shall be elected for a
one-year term, Class B directors for a two-year term and Class C
directors for a three-year term. At each succeeding annual
meeting of stockholders beginning in 1987, successors to the class
of directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of directors is
changed (other than as a result of prior death, retirement or
resignation by directors), any increase or decrease shall be
apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy
resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class,
but in no case will a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold office
until the annual meeting for the year in which his term expires
and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement,
disqualification or removal from office.
No member of the Board of Directors may be removed, with or
without cause, except at a meeting called in accordance with the
Bylaws expressly for that purpose and except upon a vote in favor
of such removal of the holders of 80% of the shares then entitled
to vote at an election of directors; and in the event that less
than the entire Board is to be removed, no one of the directors
may be removed if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election
of the class of directors of which he is a part.
The vote of shareholders required to alter, amend or repeal
this Article Six, or to alter, amend or repeal any other Article
of the Articles of Incorporation in any respect which would or
might have the effect, direct or indirect, of modifying,
permitting any action inconsistent with, or permitting
circumvention of this Article Six, shall be by the affirmative
vote of at least 80% (excluding shares beneficially owned by an
Interested Shareholder as defined in Article Seven, except for
purposes of determining whether a quorum is present) of the total
voting power of all classes of shares of stock of the Corporation
entitled to vote in the election of directors, considered for
purposes of this Article as one class.
Such affirmative vote required to alter, amend or repeal this
Article Six shall be in addition to the vote required by any
particular class or series of Preferred Stock.
SEVENTH: A. In addition to any affirmative vote required by
law or these Articles of Incorporation or by Bylaws of the
Corporation, and except as otherwise expressly provided in Section
B of this Article Seven, a Business Combination (as hereinafter
defined) with, or proposed by or on behalf of, any Interested
Shareholder (as hereinafter defined) or any Affiliate or Associate
(as hereinafter defined) of any Interested Shareholder or any
person who thereafter would be an Affiliate or Associate of such
Interested Shareholder shall require the affirmative vote of not
less than eighty percent (80%) of the votes entitled to be cast by
the holders of all the then outstanding shares of Voting Stock (as
hereinafter defined) voting together as a single class, excluding
Voting Stock beneficially owned by such Interested Shareholder.
Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage or
separate class vote may be specified, by law or in any agreement
with any national securities exchange or otherwise.
B. The provisions of Section A of this Article Seven shall
not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote, if
any, as is required by law or by any other provision of these
Articles of Incorporation or the Bylaws of the Corporation, or any
agreement with any national securities exchange, if all of the
conditions specified in either of the following Paragraphs 1 and 2
are met or, in the case of a Business Combination not involving
the payment of consideration to the holders of the Corporation's
outstanding Capital Stock (as hereinafter defined), if the
condition specified in the following Paragraph 1 is met:
1. The Business Combination shall have been approved,
either specifically or as a transaction which is within
an approved category of transactions, by a majority
(whether such approval is made prior to or subsequent to
the acquisition of, or announcement or public disclosure
of the intention to acquire, beneficial ownership of the
Voting Stocks that caused the Interested Shareholder to
become an Interested Shareholder) of the Continuing
Directors (as hereinafter defined).
2. All of the following conditions shall have been met:
a. The aggregate amount of cash and the Fair Market
Value (as hereinafter defined), as of the date of
the consummation of the Business Combination, of
consideration other than cash to be received per
share by holders of Common Stock as defined below
in such Business Combination shall be at least
equal to the highest amount determined under
clauses (i), (ii) and (iii) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or
on behalf of the Interested Shareholder for
any share of Common Stock in connection with
the acquisition by the Interested Shareholder
of beneficial ownership of shares of Common
Stock (x) within the two-year period
immediately prior to the first public
announcement of the proposed Business
Combination (the "Announcement Date") or (y)
in the transaction in which it became an
Interested Shareholder, whichever is higher,
in either case as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification with respect to Common Stock;
(ii) the Fair Market Value per share of Common
Stock on the Announcement Date or on the date
on which the Interested Shareholder became an
Interested Shareholder (the "Determination
Date"), whichever is higher, as adjusted for
any subsequent stock split, stock dividend,
subdivision or reclassification with respect
to Common Stock;
(iii) (if applicable) the price per share equal
to the Fair Market Value per share of
Common Stock determined pursuant to the
immediately preceding clause (ii)
multiplied by the ratio of (x) the
highest per share price (including any
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by or on
behalf of the Interested Shareholder for
any share of Common Stock in connection
with the acquisition by the Interested
Shareholder of beneficial ownership of
shares of Common Stock within the two-
year period immediately prior to the
Announcement Date, as adjusted for any
subsequent stock split, stock dividend,
subdivision or reclassification with
respect to Common Stock to (y) the Fair
Market Value per share of Common Stock on
the first day in such two-year period on
which the Interested Shareholder acquired
beneficial ownership of any share of
Common Stock, as adjusted for any
subsequent stock split, stock dividend,
subdivision or reclassification with
respect to Common Stock.
b. The aggregate amount of cash and the Fair Market
Value, as of the date of the consummation of the
Business Combination, of consideration other than
cash to be received per share by holders of shares
of any class or series of outstanding Capital
Stock, other than Common Stock, shall be at least
equal to the highest amount determined under
clauses (i), (ii), (iii) and (iv) below:
(i) (if applicable) the highest per share price
(including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or
on behalf of the Interested Shareholder for
any share of such class or series of Capital
Stock in connection with the acquisition by
the Interested Shareholder of beneficial
ownership of shares of such class or series of
Capital Stock (x) within the two-year period
immediately prior to the Announcement Date or
(y) in the transaction in which it became an
Interested Shareholder, whichever is higher,
in either case as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification with respect to such class or
series of Capital Stock;
(ii) the Fair Market Value per share of such class
or series of Capital Stock on the Announcement
Date or on the Determination Date, whichever
is higher, as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification with respect to such class or
series of Capital Stock;
(iii) (if applicable) the price per share equal
to the Fair Market Value per share of
such class or series of Capital Stock
determined pursuant to the immediately
preceding clause (ii) multiplied by the
ratio of (x) the highest per share price
(including any brokerage commissions,
transfer taxes and soliciting dealers'
fees) paid by or on behalf of the
Interested Shareholder for any share of
such class or series of Capital Stock in
connection with the acquisition by the
Interested Shareholder of beneficial
ownership of shares of such class or
series of Capital Stock within the two-
year period immediately prior to the
Announcement Date, as adjusted for any
subsequent stock split, stock dividend,
subdivision or reclassification with
respect to such class or series of
Capital Stock to (y) the Fair Market
Value per share of such two-year period
on which the Interested Shareholder
acquired beneficial ownership of any
share for any subsequent stock split,
stock dividend, subdivision or
reclassification with respect to such
class or series of Capital Stock;
(iv) (if applicable) the highest preferential
amount per share to which the holders of
shares of such class or series of Capital
Stock would be entitled in the event of any
voluntary or involuntary liquidation,
dissolution or winding up of the affairs of
the Corporation regardless of whether the
Business Combination to be consummated
constitutes such an event.
The provisions of this Paragraph 2 shall be
required to be met with respect to every class or
series of outstanding Capital Stock, whether or not
the Interested Shareholder has previously acquired
beneficial ownership of any shares of a particular
class or series of Capital Stock.
c. The consideration to be received by holders of a
particular class or series of outstanding Capital
Stock shall be in cash or in the same form as
previously has been paid by or on behalf of the
Interested Shareholder in connection with its
direct or indirect acquisition of beneficial
ownership of shares of such class or series of
Capital Stock. If the consideration so paid for
shares of any class or series of Capital Stock
varies as to form, the form of consideration for
such class or series of capital stock shall be
either cash or the form used to acquire beneficial
ownership of the largest number of shares of such
class or series of Capital Stock previously
acquired by the Interested Stockholder.
d. After the Determination Date and prior to the
consummation of such Business Combination: (i)
except as approved by a majority of the Continuing
Directors, there shall have been no failure to
declare and pay at the regular date therefor any
full quarterly dividends (whether or not
cumulative) payable in accordance with the terms of
any outstanding Capital Stock; (ii) there shall
have been no reduction in the annual rate of
dividends paid on the Common Stock (except as
necessary to reflect any stock split, stock
dividend or subdivision of the Common Stock),
except as approved by a majority of the Continuing
Directors, (iii) there shall have been an increase
in the annual rate of dividends paid on the Common
Stock as necessary to reflect any reclassification
(including any reverse stock split),
recapitalization, reorganization or any similar
transaction that has the effect of reducing the
number of outstanding shares of Common Stock,
unless the failure so to increase such annual rate
is approved by a majority of the Continuing
Directors; and (iv) such Interested Shareholder
shall not have become the beneficial owner of any
additional shares of Capital Stock except as part
of the transaction that results in such Interested
Shareholder becoming an Interested Shareholder and
except in a transaction that, after giving effect
thereto, would not result in any increase in the
Interested Shareholder's percentage beneficial
ownership of any class or series of Capital Stock.
e. Such Interested Shareholder shall not have made any
major change in the Corporation's business or
equity capital structure without the approval of a
majority of the Continuing Directors.
C. The following definitions shall apply with respect to
this Article Seven:
1. The term "Business Combination" shall mean:
a. any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with (i)
any Interested Shareholder or (ii) any other
company (whether or not itself an Interested
Shareholder) which is or after such merger or
consolidation would be an Affiliate or Associate of
an Interested Shareholder; or
b. any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security
agreement, investment, loan, advance, guarantee to
purchase, agreement to pay, extension of credit,
joint venture, participation or other arrangement
(in one transaction or a series of transactions)
with or for the benefit of any Interested
Shareholder or any Affiliate or Associate of any
Interested Shareholder involving any assets,
securities or commitments of the Corporation, any
Subsidiary or any Interested Shareholder or any
Affiliate or Association of any Interested
Shareholder which (except for any arrangement,
whether as employee, consultant or otherwise, other
than as a director, pursuant to which any
Interested Shareholder or any Affiliate or
Associate thereof shall, directly or indirectly,
have any control over or responsibility for the
management of any aspect of the business or affairs
of the Corporation, with respect to which
arrangements the value tests set forth below shall
not apply), together with all other such
arrangements (including all contemplated future
events), has an aggregate Fair Market Value and/or
involves aggregate commitments of $10,000,000 or
more or constitutes more than five percent (5%) of
the shareholders' equity (in the case of
transactions in capital stock) of the entity in
question (the "Substantial Part"), as reflected in
the most recent fiscal year-end consolidated
balance sheet of such entity existing at the time
the shareholders of the Corporation would be
required to approve or authorize the Business
Combination involving the assets, securities and/or
commitments constituting any Substantial Part; or
c. the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation or
for any amendment to the Corporation's Bylaws; or
d. any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any
other transaction (whether or not with or otherwise
involving an Interested Shareholder) that has the
effect, directly or indirectly, of increasing the
proportionate share of any class or series of
Capital Stock, or any securities convertible into
Capital Stock, or into equity securities of any
Subsidiary, that is beneficially owned by any
Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder; or
e. any agreement, contract or other arrangement
providing for any one or more of the actions
specified in the foregoing clauses (a) to (d).
2. The term "Capital Stock" shall mean all capital stock of
the Corporation authorized to be issued from time to
time under Article Fourth of these Articles of
Incorporation, and the term "Voting Stock" shall mean
all Capital Stock which by its terms may be voted on all
matters submitted to shareholders of the Corporation
generally.
3. The term "Common Stock" shall refer to the Corporation's
common stock, no par value per share.
4. The term "Person" shall mean any individual, firm,
company or other entity and shall include any group
comprised of any person and any other person with whom
such person or any Affiliate or Associate of such person
has any agreement, arrangement or understanding,
directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of Capital Stock.
5. The term "Interested Shareholder" shall mean any person
(other than the Corporation or any Subsidiary and other
than any profit-sharing employee stock ownership or
other employee benefit plan of the Corporation or any
Subsidiary or other trustee of or fiduciary with respect
to any such plan when acting in such capacity) who (a)
is or has announced or publicly disclosed a plan or
intention to become the beneficial owner of Voting Stock
representing ten percent (10%) or more of the votes
entitled to be cast by the holders of all then
outstanding shares of Voting Stock; or (b) is an
Affiliate or Associate of the Corporation and at any
time within the two-year period immediately prior to the
date in question was the beneficial owner of Voting
Stock representing ten percent (10%) or more of the
votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock.
6. A person shall be a "beneficial owner" of any Capital
Stock (a) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly;
(b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to
acquire (whether such right is exercisable immediately
or subject only to the passage of time), pursuant to any
agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants
or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding;
or (c) which is beneficially owned, directly or
indirectly, by any other person with which such person
or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding voting or disposing of any shares
of Capital Stock. For the purposes of determining
whether a person is an Acquiring Person pursuant to
Paragraph 1 of this Section 1, the number of shares of
Capital Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person through
application of this Paragraph C of Section 1, but
pursuant to any agreement, arrangement or understanding,
or upon exercise of conversion rights, warrants or
options, or otherwise.
7. The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2
under the Act as in effect on January 21, 1986 (the term
"Registrant" in said Rule 12b-2 meaning in this case the
Corporation).
8. The term "Subsidiary" means any company of which a
majority of any class of equity security is beneficially
owned by the Corporation; provided, however, that for
the purposes of the definition of Interested Shareholder
set forth in Paragraph 4 of this Section C. the term
"Subsidiary" shall mean only a company of which a
majority of each class of equity security is
beneficially owned by the Corporation.
9. The term "Continuing Director" means any member of the
Board of Directors of the Corporation (the "Board of
Directors"), while such person is a member of the Board
of Directors, who is not an Affiliate or Associate or
representative of the Interested Shareholder and (i) was
a member of the Board of Directors prior to the time
that the Interested Shareholder became an Interested
Shareholder or (ii) was and has continuously been a
director since the effective date of this Article, and
any successor of a Continuing Director while such
successor is a member of the Board of Directors, who is
not an Affiliate or Associate or representative of the
Interested Shareholder and is recommended or elected to
succeed the Continuing Director by a majority of
Continuing Directors.
10. "Fair Market Value" means (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the
highest closing sale price during the 30-day period
immediately preceding the date in question of a share of
such stock on the Composite Tape for New York Stock
Exchange Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered
under the Securities Exchange Act on which such stock is
listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect
to a share of such stock during the 30-day period
preceding the date in question on the National
Association of Securities Dealers, Inc. Automated
Quotations System or any similar system then in use, or
if no such quotations are available, the fair market
value on the date in question of a share of such stock
as determined by a majority of the Continuing Directors
in good faith; and (c) in the case of property other
than cash or stock, the fair market value of such
property on the date in question as determined in good
faith by a majority of the continuing Directors.
11. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other
than cash to be received" as used in Paragraphs 2.a and
2.b of Section B of this Article Seven shall include the
shares of Common Stock and/or the shares of any other
class or series of Capital Stock retained by the holders
of such shares.
D. A majority of the Continuing Directors shall have the
power and duty to determine for the purposes of this Article
Seven, on the basis of information known to them after reasonable
inquiry, all questions arising under this Article Seven, including
without limitation, (a) whether a person is an Interested
Shareholder, (b) the number of shares of Capital Stock or other
securities beneficially owned by any person, (c) whether a person
is an Affiliate or Associate of another, (d) whether a Proposed
Action is with, or proposed by, or on behalf of an Interested
Shareholder, (e) whether the assets that are the subject of any
Business Combination have, or the consideration to be received for
the issuance or transfer of securities by the Corporation or any
Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $10,000,000 or more, and (f) whether the assets or
securities that are the subject of any Business Combination
constitutes a Substantial Part. Any such determination made in
good faith shall be binding and conclusive on all parties.
E. Nothing contained in this Article Seven shall be
construed to relieve any Interested Shareholder from any fiduciary
obligation imposed by law.
F. The fact that any Business Combination complies with the
provisions of Section B of this Article Seven shall not be
construed to impose any fiduciary duty, obligation or
responsibility on the Board of Directors, or any member thereof,
to approve such Business Combination or recommend its adoption or
approval to the shareholders of the Corporation, nor shall such
compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect to such
Business Combination.
G. For the purposes of this Article Seven, a Business
Combination is presumed to have been proposed by, or on behalf of,
an Interested Shareholder or a person who thereafter would become
such if (1) after the Interested Shareholder became such, the
Business Combination is proposed following the election of any
director of the Corporation who, with respect to such Interested
Shareholder, would not qualify to serve as a Continuing Director,
or (2) such Interested Shareholder, Affiliate, Associate or person
votes for or consents to the adoption of any such Business
Combination, unless as to such Interested Shareholder, Affiliate,
Associate or person a majority of the Continuing Directors makes a
good faith determination that such Business Combination is not
proposed by or on behalf of such Interested Shareholder,
Affiliate, Associate or person, based on information known to them
after reasonable inquiry.
H. The vote of shareholders required to alter, amend or
repeal this Article Seven, or to alter, amend or repeal any other
Article of the Articles of Incorporation in any respect which
would or might have the effect, direct or indirect, of modifying,
permitting any action inconsistent with, or permitting
circumvention of this Article Seven, shall be by the affirmative
vote of at least eighty percent (80%) (excluding shares
beneficially owned by an Interested Shareholder, except for
purposes of determining whether a quorum is present) of the total
voting power of all classes of shares of stock of the Corporation
entitled to vote in the election of directors, considered for
purposes of this Article as one class. Such affirmative vote
required to alter, amend or repeal this Article Seven shall be in
addition to the vote required by any particular class or series of
Preferred Stock.
EIGHTH: The Board of Directors of the Corporation shall, in
connection with the exercise of its judgment in determining what
is in the best interest of the Corporation and its shareholders
when evaluating any proposed Major Business Transaction (as
defined below), in addition to considering the adequacy of the
amount to be paid in connection with such transaction, consider
all of the following factors and any other factors which it deems
relevant:
(a) the social and economic effects of the transaction
on the Corporation, any Subsidiary (as defined in
Article Seven), depositors, loan and other
customers, creditors and employees of the
Corporation and its Subsidiaries, and other
elements of the community in which the Corporation
and its Subsidiaries operate or are located;
(b) the business, financial condition and earnings
prospects of the acquiring person, including, but
not limited to, debt service and other existing or
likely financial obligations of the acquiring
person, and the possible effect of such conditions
upon the Corporation, its Subsidiaries and the
other elements of the community in which the
Corporation and its Subsidiaries operate or are
located; and
(c) the competence, experience and integrity of the
acquiring person and its management.
For purposes of this Article, the term "Major Business
Transaction" shall mean (i) any merger or consolidation of the
Corporation or any Subsidiary, (ii) any sale, exchange, transfer
or other disposition of all or substantially all of the
Corporation's or any Subsidiary's assets, (iii) any offer to
purchase any or all of the Corporation's securities, (iv) any
solicitation of proxies for election of directors of the
Corporation, or (v) any similar transaction or event.
NINTH: A. Subject to Section C of this Article Ninth, the
Corporation shall indemnify any person who was or is a party or is
threatened to be made party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was
a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interest of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful. This indemnification provision
shall not extend to those suits instituted by any such director,
officer, employee or agent unless and to the extent such
indemnification is authorized by the Board of Directors.
B. Subject to Section C of this Article Ninth, the
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the Corporation; except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the Corporation unless and only
to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
C. Any indemnification under this Article Ninth (unless
ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because he has met the applicable
standard of conduct set forth in Section A or Section B of this
Article Ninth, as the case may be. Such determination shall be
made (i) by the Board of Directors by a majority vote of a quorum
of the entire Board of Directors, which majority and quorum must
consist of directors who were not parties to or otherwise
interested in such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, by independent legal counsel in a
written opinion, or (iii) by the stockholder. Directors "parties
to or otherwise interested in" an action, suit or proceeding shall
include, for purposes of the preceding sentence, (i) any director
instituting such action, suit or proceeding, whether in his
capacity as director or stockholder (an "Instituting Director")
and (ii) any other director nominated (x) by an Instituting
Director (and not by the Board of Directors), (y) as part of the
same slate of nominees as an Instituting Director (if not
nominated by the Board of Directors), or (z) by the same
stockholder or any of the same stockholders who nominated an
Instituting Director. To the extent, however, that a director,
officer, employee or agent of the Corporation has been successful
on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection therewith, without the necessity of
authorization in the specific case. Notwithstanding any of the
provisions of this Article Ninth, in no event shall any person be
indemnified against expenses (including attorneys' fees),
judgments, fines and amounts due or paid in connection with any
action, suit or proceeding instituted by any such director,
officer, employee or agent unless and to the extent such
indemnification is authorized by the Board of Directors, or
against expenses, penalties, or other payments incurred in an
administrative proceeding or action instituted by an appropriate
bank regulatory agency which proceeding or action results in a
final order assessing civil money penalties or requiring
affirmative action by an individual or individuals in the form of
payments to the Corporation.
D. For purposes of a determination under Section C of this
Article Ninth, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or with respect
to any criminal action or proceeding, to have had no reasonable
cause to believe his conduct was unlawful, if his action is based
on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of
the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or
another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section
D shall mean any other corporation or any partnership, joint
venture, trust or other enterprise of which such person is or was
serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section D shall not be
deemed to be exclusive or to limit in any way the circumstances in
which a person may be deemed to have met the applicable standard
of conduct set forth in Sections A or B of this Article Ninth, as
the case may be.
E. Notwithstanding any contrary determination in the
specific case under Section C of this Article Ninth, and
notwithstanding the absence of any determination thereunder, any
director, officer, employee or agent may apply to any court of
competent jurisdiction in the State of Mississippi for
indemnification to the extent otherwise permissible under Sections
A and B of this Article Ninth. The basis of such indemnification
by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is
proper in the circumstances because he has met the applicable
standards of conduct set forth in Sections A and B of this Article
Ninth, as the case may be. Notice of any application for
indemnification pursuant to this Section E shall be given to the
Corporation promptly upon the filing of such application.
F. Expenses incurred in defending or investigating a
threatened or pending action, suit or proceeding may be paid by
the Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors
in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such
amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as authorized in
this Article Ninth.
G. The indemnification provided by this Article Ninth shall
not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any Bylaw, agreement,
contract, vote of stockholders or disinterested directors or
pursuant to the direction (howsoever embodied) of any court of
competent jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections A and B of
this Article Ninth shall be made to the fullest extent permitted
by law. The Provisions of this Article Ninth shall not be deemed
to preclude the indemnification of any person who is not specified
in Sections A or B of this Article Ninth, but whom the Corporation
has the power or obligation to indemnify under the provisions of
applicable federal or state law, or otherwise. The
indemnification provided by this Article Ninth shall continue as
to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of heirs, executors and
administrators of such person.
H. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request
of the Corporation as director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him, and
incurred by him, in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability
under the provisions of this Article Ninth, provided that the
Corporation shall not purchase or maintain insurance coverage for
a formal order by a bank regulatory agency assessing civil money
penalties against a director or employee of the Corporation.
I. For purposes of this Article Ninth, references to "the
Corporation" shall include, in addition to the resulting company,
any constituent company (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article Ninth with respect
to the resulting or surviving company as he would have with
respect to such constituent company if its separate existence had
continued.
DEPOSIT GUARANTY CORP.
BYLAWS
TABLE OF CONTENTS
DEPOSIT GUARANTY CORP.
BYLAWS
PAGE
NO.
ARTICLE I. OFFICES
Section 1. Principal Office . . . . . . . . . . . . . 1
Section 2. Registered Office . . . . . . . . . . . . 1
ARTICLE II. SHAREHOLDERS
Section 1. Annual Meeting . . . . . . . . . . . . . . 1
Section 2. Special Meetings . . . . . . . . . . . . . 1
Section 3. Place of Meeting . . . . . . . . . . . . . 2
Section 4. Notice of Meeting . . . . . . . . . . . . 3
Section 5. Closing of Transfer Books or Fixing of
Record Date . . . . . . . . . . . . . . . 3
Section 6. Voting Lists . . . . . . . . . . . . . . . 3
Section 7. Quorum . . . . . . . . . . . . . . . . . . 4
Section 8. Proxies . . . . . . . . . . . . . . . . . 4
Section 9. Voting of Shares . . . . . . . . . . . . . 5
Section 10. Voting of Shares by Certain
Holders . . . . . . . . . . . . . . . . 5
Section 11. Cumulative Voting . . . . . . . . . . . . 6
Section 12. Shares Held by Nominees . ... . . . . . . 6
Section 13. Corporation's Acceptance of
Votes . . . . . . . . . . . . . . . . . 6
ARTICLE III. BOARD OF DIRECTORS
Section 1. General Powers . . . . . . . . . . . . . . 7
Section 2. Number, Tenure and Qualifications . . . . 7
Section 3. Regular Meetings . . . . . . . . . . . . . 8
Section 4. Special Meetings . . . . . . . . . . . . . 9
Section 5. Quorum and Voting . . . . . . . . . . . . 9
Section 6. Manner of Acting . . . . . . . . . . . . . 9
Section 7. Action Without a Meeting . . . . . . . . . 9
Section 8. Vacancies . . . . . . . . . . . . . . . . 10
Section 9. Compensation . . . . . . . . . . . . . . . 10
Section 10. Presumption of Assent . . . . . . . . . 10
Section 11. Executive and Other Committees . . . . . 10
Section 12. Participation by Telephonic or
Other Means . . . . . . . . . . . . . . 11
Section 13. Voting of Shares in Other
Corporations . . . . . . . . . . . . . 11
Section 14. Honorary Director . . . . . . . . . . . . 11
ARTICLE IV. OFFICERS
Section 1. Appointment and Number . . . . . . . . . . 12
Section 2. Tenure of Office . . . . . . . . . . . . . 12
Section 3. Nature of Employment and Termination
of Officers . . . . . . . . . . . . . . . 12
Section 4. Vacancies . . . . . . . . . . . . . . . . 12
Section 5. Chairman of the Board . . . . . . . . . . 12
Section 6. President . . . . . . . . . . . . . . . . 12
Section 7. Vice President . . . . . . . . . . . . . . 13
Section 8. Secretary . . . . . . . . . . . . . . . . 13
Section 9. Treasurer . . . . . . . . . . . . . . . . 13
Section 10. Assistant Secretaries and
Assistant Treasurers . . . . . . . . . 13
Section 11. Salaries . . . . . . . . . . . . . . 13
Section 12. Bonds . . . . . . . . . . . . . . . 14
ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares . . . . . . . . . 14
Section 2. Transfer of Shares . . . . . . . . . . . . 15
ARTICLE VI. FISCAL YEAR . . . . . . . . . . . . . . . . . . 15
ARTICLE VII. DISTRIBUTIONS . . . . . . . . . . . . . . . 15
ARTICLE VIII. CORPORATE SEAL . . . . . . . . . . . . . . . 15
ARTICLE IX. WAIVER OF NOTICE . . . . . . . . . . . . . . . . 15
ARTICLE X. AMENDMENTS . . . . . . . . . . . . . . . . . . . 16
ARTICLE XI. EMERGENCY BYLAWS . . . . . . . . . . . . . . . . 16
ARTICLE XII. MISCELLANEOUS PROVISIONS
Section 1. Execution of Instruments . . . . . . . . . 17
Section 2. Capital Expenditures . . . . . . . . . . . 17
DEPOSIT GUARANTY CORP.
BYLAWS
ARTICLE I
Offices
Section 1. Principal Office. The principal office of
the Corporation in the State of Mississippi shall be located in
the City of Jackson, County of Hinds County. The Corporation may
have such other offices, either within or without the State of
Mississippi, as the Board of Directors may designate or as the
business of the corporation may require from time to time.
Section 2. Registered Office. The registered office of
the Corporation required by the Mississippi Business Corporation
Act to be maintained in the State of Mississippi may be, but need
not be, identical with the principal office in the State of
Mississippi, and the address of the registered office may be
changed from time to time by the Board of Directors as provided
by law.
ARTICLE II
Shareholders
Section 1. Annual Meeting. The annual meeting of
shareholders shall be held on the third Tuesday in the month of
April in each year at such time and place as may be determined by
the Directors, for the purpose of electing Directors and for the
transaction of such other business as may properly come before
the meeting. If the date fixed for the annual meeting shall be a
legal holiday in the State of Mississippi, such meeting shall be
held on the next succeeding business day.
If the election of Directors shall not be held on the day
designated herein for any annual meeting of the shareholders, or
at any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of the shareholders
as soon thereafter as conveniently may be.
Section 2. Special Meetings. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise
prescribed by statute, may be called by the Board of Directors,
by the Chairman of the Board of Directors or by the President.
Unless the Articles of Incorporation provide otherwise, special
meetings of the shareholders shall be called by the Chairman if
the holders of at least ten percent (10%) of all the votes
entitled to be cast on any issue proposed to be considered at the
proposed special meeting sign, date and deliver to the
Corporation's Secretary one or more written demands for the
meeting describing the purpose or purposes for which it is to be
held. If not otherwise fixed under applicable law, the record
date for determining shareholders entitled to demand a special
meeting is the date the first shareholder signs the demand.
Business transacted at all special meetings shall be confined to
such business as is properly brought before the meeting in
accordance with the Bylaws and as is stated in the notice.
To be properly brought before a meeting, business must be
specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board and (a) properly
brought before the meeting by or at the direction of the Board or
(b) properly brought before the meeting by a shareholder. In
addition to any other applicable requirements, for business to be
properly brought before a meeting by a shareholder, the
shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a shareholder's
notice must be delivered to or mailed and received by the
Secretary of the Corporation, not less than sixty (60) days nor
more than seventy-five (75) days prior to the meeting if the
meeting is an annual meeting, and not less than forty (40) nor
more than sixty (60) days prior to the meeting if the meeting is
a special meeting; provided, however, that in the event that less
than sixty (60) days' notice or prior public disclosure of the
date of the annual meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not
later than the close of business on the fifteenth (15th) day
following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made, whichever
first occurs. A shareholder's notice to the Secretary shall set
forth as to each matter the shareholder proposes to bring before
the meeting (i) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such
business at the meeting, (ii) the name and record address of the
shareholder proposing such business, (iii) the class and number
of shares of the Corporation which are beneficially owned by the
shareholder, and (iv) any material interest of the shareholder in
such business.
Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at any meeting except in accordance
with the procedures set forth in this Section 2, provided,
however, that nothing in this Section 2 shall be deemed to
preclude discussion by any shareholder of any business properly
brought before an annual meeting.
The Chairman of a meeting shall, if the facts warrant,
determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the
provisions of this Section 2, and if he should so determine, he
shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
Section 3. Place of Meeting. The Board of Directors may
designate any place, either within or without the State of
Mississippi for any annual meeting or for any special meeting. A
valid waiver of notice signed by all shareholders entitled to
notice may designate any place, either within or without the
State of Mississippi as the place for any annual meeting or for
any special meeting. Unless the notice of the meeting states
otherwise, the meeting shall be held at the Corporation's
principal office.
Section 4. Notice of Meeting. The Corporation shall
notify shareholders entitled to vote at the meeting of the date,
time and place of each annual and special shareholders' meeting
no fewer than ten (10) nor more than sixty (60) days before the
meeting date, either personally or by mail, by or at the
direction of the officer or persons calling the meeting. Unless
applicable law or the Articles of Incorporation require
otherwise, the Corporation shall give notice only to shareholders
entitled to vote at the meeting. Notice shall be deemed to be
delivered when deposited in the United States mail, addressed to
the shareholder at his address as it appears on the stock
transfer books of the Corporation, with postage thereon prepaid.
Unless applicable law or the Articles of Incorporation
require otherwise, notice of an annual meeting need not include a
description of the purpose or purposes for which the meeting is
called. Notice of a special meeting must include a description
of the purpose or purposes for which the meeting is called.
Unless these Bylaws require otherwise, if an annual or
special shareholders' meeting is adjourned to a different date,
time or place, notice need not be given of the new date, time or
place if the new date, time or place is announced at the meeting
before adjournment. If a new record date for the adjourned
meeting is or must be fixed under applicable law or Article II,
Section 5 of these Bylaws, however, notice of the adjourned
meeting must be given under this section to persons who are
shareholders as of the new record date.
Section 5. Closing of Transfer Books or Fixing of Record
Date. For the purpose of determining shareholders entitled to
notice of a shareholders' meeting, to demand a special meeting,
to vote or to take any other action, the Board of Directors of
the Corporation may fix the record date, which may not be more
than seventy (70) days before the meeting or action requiring a
determination of shareholders. If not otherwise fixed by law or
by the Board of Directors, the record date for determining
shareholders entitled to notice or and to vote at an annual or
special shareholders' meeting is the close of business on the day
before the first notice is delivered to shareholders. If the
Board of Directors does not fix the record date for determining
shareholders entitled to a distribution (other than the one
involving a repurchase or reacquisition of shares), it is the
date the Board of Directors authorizes the distribution. A
determination of shareholders entitled to notice of or to vote at
a shareholders' meeting is effective for any adjournment of the
meeting unless the Board of Directors fixes a new record date
which it must do if the meeting is adjourned to a date more than
one hundred twenty (120) days after the date fixed for the
original meeting.
Section 6. Voting Lists. After fixing a record date for
a meeting, the Corporation shall prepare an alphabetical list of
the names of all its shareholders who are entitled to notice of a
shareholders' meeting. The list shall be arranged by voting
group (and within each voting group by class or series of shares)
and show the address of and number of shares held by each
shareholder.
The shareholders' list shall be available for inspection by
any shareholder beginning two (2) business days after notice of
the meeting is given for which the list was prepared and
continuing through the meeting, at the Corporation's principal
office or at a place identified in the meeting notice in the city
where the meeting will be held. A shareholder, his agent or
attorney shall be entitled on written demand to inspect and,
subject to the requirements of applicable law, to copy the list
during regular business hours and at his expense, during the
period it is available for inspection. The Corporation shall
make the shareholders' list available at the meeting, and any
shareholder, his agent or attorney is entitled to inspect the
list at any time during the meeting or any adjournment.
Section 7. Quorum. Unless the Articles of Incorporation
or applicable law impose other quorum requirements, a majority of
the votes entitled to be cast on the matter by a voting group,
represented in person or by proxy, shall constitute a quorum of
that voting group for action on that matter. If less than a
majority of the outstanding shares are represented at a meeting,
a majority of the shares so represented may adjourn the meeting
from time to time without further notice except as may be
required by Article II, Section 4 of these Bylaws or by
applicable law. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally
noticed.
Shares entitled to vote as a separate voting group may take
action on a matter at a meeting only if a quorum of those shares
exists with respect to that matter. Unless the Articles of
Incorporation or applicable law provide otherwise, a majority of
votes entitled to be cast on the matter by the voting group
constitutes a quorum of that voting group for action on that
matter. Once a share is represented for any purpose at a
meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting
unless a new record date is or must be set for that adjourned
meeting.
Section 8. Proxies. A shareholder may appoint a proxy
to vote or otherwise act for him by signing an appointment form,
either personally or by his attorney-in-fact. An appointment of
a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes of the Corporation
before or at the time of the meeting. No appointment shall be
valid after eleven (11) months from the date of its execution,
unless a longer period is expressly provided in the appointment
form. An appointment of a proxy is revocable by the shareholder
unless the appointment form conspicuously states that it is
irrevocable and that the appointment is coupled with an interest.
Appointments coupled with an interest include the appointment of
(1) a pledgee; (2) a person who purchased or agreed to purchase
the shares; (3) a creditor of a corporation who extended it
credit under terms requiring the appointment; (4) an employee of
a corporation whose employment contract requires the appointment;
or (5) a party to a voting agreement created under applicable
law.
The death or incapacity of the shareholder appointing a
proxy does not affect the right of the Corporation to accept the
proxy's authority unless notice of the death or incapacity is
received by the Secretary or other officer or agent authorized to
tabulate votes before the proxy exercises his authority under the
appointment. An appointment made irrevocable because it is
coupled with an interest is revoked when the interest with which
it is coupled is extinguished. A transferee for value of shares
subject to an irrevocable appointment may revoke the appointment
if he did not know of its existence when he acquired the shares
and the existence of the irrevocable appointment was not noted
conspicuously on the certificate representing the shares or on
the information statement for shares without certificates.
Subject to applicable law and to any express limitation on
the proxy's authority appearing on the face of the certificate,
the Corporation is entitled to accept the proxy's vote or other
action as that of the shareholder making the appointment.
Section 9. Voting of Shares. Subject to the provisions
of Section 11 of this Article II, each outstanding share entitled
to vote shall be entitled to one vote upon each matter submitted
to a vote at a meeting of shareholders. If a quorum exists,
action on a matter (other than the election of Directors) by a
voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the
action, unless the Articles of Incorporation or applicable law
require a greater number of affirmative votes. Voting at all
meetings may be oral, but any qualified voter may demand a vote
by ballot, and each such ballot shall state the name of the
shareholder voting and the number of shares voted by him; and if
such ballot be cast by a proxy, it shall also state the name of
such proxy.
Section 10. Voting of Shares by Certain Holders. Shares
standing in the name of another corporation may be voted by such
officer, agent or proxy as the bylaws of such corporation may
prescribe, or, in the absence of such provision, as the board of
directors of such corporation may determine.
Absent special circumstances, shares are not entitled to
vote if they are owned, directly or indirectly, by a corporation,
domestic or foreign, and a majority of the shares of that
corporation entitled to vote for the directors of that
corporation are owned, directly or indirectly, by this
Corporation. This does not limit the power of this Corporation
to vote any shares, including its own shares, held by it in a
fiduciary capacity.
Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing
in the name of a trustee may be voted by him, either in person or
by proxy, but no trustee shall be entitled to vote shares held by
him without a transfer of such shares into his name. Shares
standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name
if authority so to do be contained in an appropriate order of the
court by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to
vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter the pledgee shall be entitled
to vote the shares so transferred.
Shares of its own stock belonging to the Corporation shall
not be voted, directly or indirectly, at any meeting, and shall
not be counted in determining the total number of outstanding
shares at any given time.
Section 11. Cumulative Voting. Unless otherwise provided
by law, at each election of Directors every shareholder entitled
to vote in the election shall have the right to vote, in person
or by proxy, the number of shares owned by him for as many
persons as there are Directors to be elected and for whose
election he has a right to vote, or to cumulate his votes by
giving one (1) candidate as many votes as the number of Directors
to be elected multiplied by the number of his shares shall equal,
or by distributing such votes on the same principal among any
number of candidates.
Section 12. Shares Held by Nominees. The Corporation may
establish a procedure by which the beneficial owner of shares
that are registered in the name of a nominee is recognized by the
Corporation as a shareholder. The extent of this recognition may
be determined in the procedure. The procedure may set forth: (1)
the types of nominees to which it applies; (2) the rights or
privileges that the Corporation recognizes in a beneficial owner;
(3) the manner in which the procedure is selected by the nominee;
(4) the information that must be provided when the procedure is
selected; (5) the period for which selection of the procedure is
effective; and (6) other aspects of the rights and duties
created.
Section 13. Corporation's Acceptance of Votes. If the
name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of the shareholder, the Corporation, if
acting in good faith, is entitled to accept the vote, consent,
waiver or proxy appointment and give it effect as the act of the
shareholder.
If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its shareholder,
the Corporation, if acting in good faith, is nevertheless
entitled to accept the vote, consent, waiver or proxy appointment
and give it effect as the act of the shareholder if: (1) the
shareholder is an entity and the name signed purports to be that
of an officer or agent of the entity; (2) the name signed
purports to be that of an administrator, executor, guardian or
conservator representing the shareholder and, if the Corporation
requests, evidence of fiduciary status acceptable to the
Corporation has been presented with respect to the vote, consent,
waiver or proxy appointment; (3) the name signed purports to be
that of a receiver or trustee in bankruptcy of the shareholder
and, if the Corporation requests, evidence of this status
acceptable to the Corporation has been presented with respect to
the vote, consent, waiver or proxy appointment; (4) the name
signed purports to be that of a pledgee, beneficial owner or
attorney-in-fact of the shareholder and, if the Corporation
requests, evidence acceptable to the Corporation of the
signatory's authority to sign for the shareholder has been
presented with respect to the vote, consent, waiver or proxy
appointment; (5) two (2) or more persons are the shareholders as
co-tenants or fiduciaries and the name signed purports to be the
name of at least one (1) of the co-owners and the person signing
appears to be acting on behalf of all the co-owners.
The Corporation is entitled to reject a vote, consent,
waiver or proxy appointment if the Secretary or other officer or
agent authorized to tabulate votes, acting in good faith, has
reasonable basis for doubt about the validity of the signature on
it or about the signatory's authority to sign for the
shareholder.
ARTICLE III
Board of Directors
Section 1. General Powers. All corporate powers shall
be exercised by or under the authority of, and the business and
affairs of the Corporation managed under the direction of, its
Board of Directors.
Section 2. Number, Tenure and Qualifications. The
number of Directors of the Corporation shall not be more than
twenty-five (25) nor less than nine (9), the exact number of
Directors to be determined from time to time by resolution
adopted by affirmative vote of a majority of the entire Board of
Directors. The number of Directors may be increased or decreased
from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors, but no decrease shall
have the effect of shortening the term of any incumbent Director.
Each Director shall hold office until his successor shall have
been elected and qualified. Each Director must hold in his own
right stock of the Corporation, the aggregate par, book or market
value of which is not less than $1,000 as of the date of the
Director's election. No person shall be elected Director who is
sixty-five (65) years of age or older on the first day of January
immediately preceding the election of Directors. No Director
shall be eligible for reelection who has more than 50% absences
from Board and Committee meetings, unexcused by the Board of
Directors.
Only persons who are nominated in accordance with the
following procedures shall be eligible for election as Directors.
Nominations of persons for election to the Board of the
Corporation at the annual meeting may be made by or at the
direction of the Board of Directors, by any nominating committee
or person appointed by the Board, or by any shareholder of the
Corporation entitled to vote for the election of Directors at the
meeting who complies with the notice procedures set forth in this
Section 2.
Such nominations, other than those made by or at the
direction of the Board, shall be made pursuant to timely notice
in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice shall be delivered to or mailed and received
at the principal executive office of the Corporation not less
than sixty (60) days nor more than seventy-five (75) days prior
to the annual meeting; provided, however, that in the event that
less than sixty (60)days' notice or prior public disclosure of
the date of the meeting is given or made to shareholders, notice
by the shareholder to be timely must be so received not later
than the close of business on the fifteenth (15th) day following
the day on which such notice of the date of the meeting was
mailed or such public disclosure was made, whichever first
occurs. Such shareholder's notice to the Secretary shall set
forth (a) as to each person whom the shareholder proposes to
nominate for election or reelection as a Director (i) the name,
age, business address and residence address of the person, (ii)
the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of the Corporation
which are beneficially owned by such person, (iv) any other
information relating to the person that is required to be
disclosed in solicitations for proxies for election of Directors
pursuant to Rule 14A under the Securities Exchange Act of 1934,
as amended, and (v) any information relating to the person that
is required to be disclosed in a notice filed with the
appropriate federal regulatory authority under the Change in Bank
Control Act by a person acquiring control of a bank (even if the
person is not required by the Change in Bank Control Act to file
such a notice in the instant case); and (b) as to the shareholder
giving the notice (i) the name and record address of shareholder,
(ii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the shareholder, and
(iii) any information relating to the person that is required to
be disclosed in a notice filed with the appropriate federal
regulatory authority under the Change in Bank Control Act by a
person acquiring control of a bank (even if the person is not
required by the Change in Bank Control Act to file such a notice
in the instant case). The Corporation may require any proposed
nominee to furnish such other information as may reasonably be
required by the Corporation to determine the eligibility of such
proposed nominee to serve as Director of the Corporation. No
person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures
set forth herein.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure or that the
proposed nominee does not meet the qualifications required of
Directors by these Bylaws or by applicable law, and if he should
so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
Section 3. Regular Meetings. Unless the Articles of
Incorporation or these Bylaws provide otherwise, a regular
meeting of the Board of Directors shall be held without other
notice than this Bylaw immediately after, and at the same place
as, the annual meeting of shareholders. The Board of Directors
may provide, by resolution, the time and place, for the holding
of additional regular meetings without other notice than such
resolution.
Section 4. Special Meetings. Special meetings of the
Board of Directors may be called by or at the request of the
President, the Chairman of the Board of Directors or by a
majority of the Board of Directors. The notice of such meeting
shall include the date, time and place of the meeting. If no
place for the meeting has been designated in the notice, the
meeting shall be held at the principal office of the Corporation.
Notice of any special meeting shall be given at least three (3)
hours previously thereto by notice given personally to each
Director at his business address, by telephone, or by telegram,
or at least two (2) days previously thereto by notice mailed to
each Director at his business address. If mailed, such notice
shall be deemed to be delivered when deposited in the United
States mail so addressed, with postage thereon prepaid. If
notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph
company. Notice of special meetings need not specify the
business to be transacted at the meeting.
Any Director may waive notice of any meeting. The
attendance of a Director at a meeting shall constitute a waiver
of notice of such meeting, except where a Director attends a
meeting for the express purpose of objecting to the transaction
of any business because the meeting is not lawfully called or
convened.
Section 5. Quorum and Voting. A majority of the number
of Directors fixed by Section 2 of this Article III shall
constitute a quorum for the transaction of business at any
meeting of the Board of Directors, but if less than such number
necessary for a quorum is present at a meeting, a majority of the
Directors present may adjourn the meeting from time to time
without further notice.
Section 6. Manner of Acting. If a quorum is present
when a vote is taken, the affirmative vote of a majority of
Directors present is the act of the Board of Directors unless the
Articles of Incorporation or Bylaws require the vote of a greater
number of Directors.
Section 7. Action Without a Meeting. Unless the
Articles of Incorporation or Bylaws provide otherwise, action
required or permitted to be taken at a Board of Directors'
meeting may be taken without a meeting if the action is taken by
all members of the Board. The action must be evidenced by one or
more written consents describing the action taken, signed by each
Director, and included in the minutes or filed with the corporate
records reflecting the action taken. Action taken under this
section is effective when the last Director signed the consent,
unless the consent specifies a different effective date. Such a
consent has the effect of a meeting vote and may be described as
such in any document.
Section 8. Vacancies. If a vacancy occurs on the Board
of Directors, including a vacancy resulting from an increase in
the number of Directors, only the shareholders may fill the
vacancy. A Director elected to fill a vacancy shall be elected
for the unexpired term of his predecessor in office. A vacancy
that will occur at a specific later date (by reason of a
resignation effective at a later date or otherwise) may be filled
before the vacancy occurs, but the new Director may not take
office until the vacancy occurs.
Section 9. Compensation. Unless the Articles of
Incorporation or these Bylaws provide otherwise, the Board of
Directors may fix the compensation of Directors. By resolution
of the Board of Directors, each Director may be paid his
expenses, if any, of attendance at each meeting of the Board of
Directors, and may be paid a stated salary as a Director or a
fixed sum for attendance at each meeting of the Board of
Directors or both. No such payment shall preclude any Director
from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees
may be allowed like compensation for attending meetings.
Section 10. Presumption of Assent. A Director who is
present at a meeting of the Board of Directors or a committee of
the Board of Directors when corporate action is taken shall be
deemed to have assented to the action taken unless: (1) he
objects at the beginning of the meeting (or promptly upon his
arrival) to holding it or transacting business at the meeting;
(2) his dissent or abstention from the action taken is entered in
the minutes of the meeting; or (3) he delivers written notice of
his dissent of abstention to the presiding officer of the meeting
before its adjournment or to the Corporation immediately after
the adjournment of the meeting. The right of dissent or
abstention shall not be available to a Director who votes in
favor of the action taken.
Section 11. Executive and Other Committees. The Board of
Directors may create one or more committees and appoint members
of the Board of Directors to serve on them. Each committee must
have two (2) or more members, who serve at the pleasure of the
Board of Directors. The creation of a committee and appointment
of members to it must be approved by the greater of (1) a
majority of all the Directors in office when the action is taken
or (2) the number of Directors required by the Articles of
Incorporation or Bylaws to take action. To the extent specified
by the Board of Directors or in the Articles of Incorporation or
Bylaws, each committee may exercise the authority of the Board of
Directors. A committee may not, however, authorize
distributions; approve or propose to shareholders action required
by applicable law to be approved by shareholders; fill vacancies
on the Board of Directors or on any of its committees; amend
Articles of Incorporation pursuant to applicable law authorizing
amendment by the Board of Directors; adopt, amend or repeal
Bylaws; approve a plan of merger not requiring shareholder
approval; authorize or approve the reacquisition of shares,
except according to a formula or method prescribed by the Board
of Directors; or authorize or approve the issuance or sale or
contract for sale of shares, or determine the designation and
relative rights, preferences and limitations of a class or series
of shares, except that the Board of Directors may authorize a
committee (or a senior executive officer of the Corporation) to
do so within limits specifically prescribed by the Board of
Directors. Except as otherwise provided herein, provisions of
these Bylaws governing meetings, action without meetings, notice
and waiver of notice, and quorum and voting requirements of the
Board of Directors apply to committees and their members as well.
The Board shall annually appoint an Audit Committee composed
of not less than five (5) Directors, exclusive of any active
officers, whose duty it shall be to make an examination at least
once every calendar year and within fifteen (15) months of the
last examination into the affairs of the Corporation or cause
suitable examinations to be made by auditors responsible only to
the Board of Directors, and to report the result of such
examination in writing to the Board at the next regular meeting
thereafter. Such report shall state whether the Corporation is
in sound condition, whether adequate internal audit controls and
procedures are being maintained, and shall recommend to the Board
such changes in the manner of doing business or conducting the
affairs of the Corporation as shall be deemed advisable.
Special committees may be appointed by the Board of
Directors from among its members for such purposes as
circumstances warrant. Any special committee shall limit its
activities to the accomplishment of the purposes for which
created and shall have no power to act except as is specifically
conferred upon it by resolution of the Board of Directors.
Section 12. Participation by Telephonic or Other Means.
Unless the Articles of Incorporation or these Bylaws provide
otherwise, the Board of Directors may permit any or all Directors
to participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which
all Directors participating may simultaneously hear each other
during the meeting. A Director participating in a meeting by
this means is deemed to be present in person at the meeting.
Section 13. Voting of Shares in Other Corporations. The
Chairman, the President, or such other officer or person as may
be designated by resolution of the Board of Directors may act for
the Corporation in voting shares it owns of any other
corporation. The Board may determine the manner in which such
shares are to be voted or may delegate to its representative the
authority to vote such shares in the best interests of the
Corporation.
Section 14. Honorary Director. A retired Chief Executive
Officer of the Corporation shall, upon said retirement, be
eligible for election, annually, as an Honorary Director of the
Corporation, until the end of the calendar year in which his
seventieth (70th) birthday falls. Said honorary directorship
shall expire at the end of the calendar year in which the
seventieth (70th) birthday falls.
ARTICLE IV
Officers
Section 1. Appointment and Number. The officers of the
Corporation shall be appointed by the Board of Directors at the
first meeting of the Board held after the annual meeting of the
shareholders. The officers of the Corporation shall be a
Chairman of the Board, a President, a Secretary, a Treasurer, and
such other officers (including Executive Vice Presidents, Senior
Vice Presidents, Vice Presidents, Assistant Vice Presidents) as
the Board, or in the case of interim appointments below the level
of Executive Vice President, the Officer Review Committee,
appointed by the Chairman of the Board, may deem necessary.
Interim appointments below the level of the Executive Vice
President may be approved by the Officer Review Committee. Any
two or more offices may be held by the same person.
Section 2. Tenure of Office. An officer shall hold his
office at the pleasure of the Board of Directors, unless he
resigns, becomes disqualified, or is terminated from employment
in accordance with the provisions of Section 3 of these bylaws.
Any vacancy occurring in the office of the Chairman of the Board
shall be filled promptly by the Board of Directors.
Section 3. Nature of Employment and Termination of
Officers. Absent a written agreement signed by the Chairman of
the Board or President to the contrary, all employment, including
the employment of officers with the Association, is at will.
Appointment or election to an office does not change the nature
of employment. The employment of officers, like that of all
other employees, may be terminated at any time, for any reason,
and without further obligation. The employment of officers below
the level of Executive Vice President may be terminated upon the
authority of the Officer Review Committee; the employment of all
officers may be terminated upon the authority of the Board.
Section 4. Vacancies. A vacancy in any office because
of death, resignation, removal, disqualification or otherwise,
may be filled by the Board of Directors for the unexpired portion
of the term.
Section 5. Chairman of the Board. The Board of
Directors shall appoint one of its members as Chairman. The
Chairman shall be the Chief Executive Officer of the Corporation,
shall preside at all meetings of the Board, and in general shall
perform all duties incident to the office of Chairman and such
other duties as may be prescribed from time to time by the Board
of Directors. The Chief Executive Officer shall have the power
to vote all shares of stock owned by the Corporation in another
corporation.
Section 6. President. The President shall have such
executive duties as are prescribed by the Board of Directors.
The President of the Corporation shall be its Chief Operating
Officer. He may sign, with the Secretary or any other proper
officer of the Corporation thereunto authorized by the Board of
Directors, contracts, or other instruments which the Board of
Directors has authorized to be executed, except in cases where
the signing and execution thereof shall be expressly delegated by
the Board of Directors or by these Bylaws to some other officer
or agent of the Corporation, or shall be required by law to be
otherwise signed or executed; and in general shall perform all
duties incident to the office of President and such other duties
as may be prescribed by the Board of Directors from time to time.
Section 7. Vice President. In the absence of the
President or in the event of his death, inability or refusal to
act, any Vice President may be designated by the Board to perform
the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the
President. Any Vice President elected by the Board of Directors
shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
Section 8. Secretary. The Secretary shall prepare and
keep the minutes of the shareholders' and Board of Directors'
meetings in one or more books provided for that purpose. He
shall see that all notices are duly given in accordance with the
provisions of these Bylaws except where otherwise expressly
provided in these Bylaws or as required by law. He shall be the
custodian of the corporate records and of the seal of the
Corporation, authenticate records of the Corporation and in
general perform all duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him
by the President or by the Board of Directors.
Section 9. Treasurer. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine. He shall
have charge and custody of and be responsible for all funds and
securities of the Corporation, and in general perform all of the
duties incident to the office of Treasurer and such other duties
as from time to time may be assigned to him by the President, or
by the Board of Directors. The Treasurer shall be the chief
financial and the principal accounting officer of the
Corporation.
Section 10. Assistant Secretaries and Assistant
Treasurers. Assistant Secretaries and Assistant Treasurers, in
general, shall perform such duties as shall be assigned to them
by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors. Assistant Treasurers shall,
if required by the Board of Directors, give bonds for the
faithful discharge of their duties in such sums and with such
sureties as the Board of Directors shall determine.
Section 11. Salaries. The salaries of the officers shall
be fixed from time to time by the Board of Directors and no
officer shall be prevented from receiving such salary by reason
of the fact that he is also a Director of the Corporation. The
Board of Directors may delegate to the Chairman the authority to
fix salaries for officers, other than himself, and employees of
the Corporation within the guidelines and limitations established
by the Board of Directors.
Section 12. Bonds. If required by the Board of
Directors, any one or more or all of the officers of the
Corporation shall give bond for the faithful discharge of his or
their duties in such sum and with such surety or sureties as the
Board of Directors shall determine.
ARTICLE V
Certificates for Shares and Their Transfer
Section 1. Certificates for Shares. Shares shall be
represented by certificates. Certificates representing shares of
the Corporation shall be in such form as shall be determined by
the Board of Directors. Each share certificate shall state on
its face: (1) the name of the Corporation and that the
Corporation is organized under the law of Mississippi; (2) the
name of the person to whom the share is issued; and (3) the
number and class of shares and the designation of the series, if
any, the certificate represents. If the Corporation is
authorized to issue different classes of shares or different
series within a class, the designations, relative rights,
preferences and limitations applicable to each class and the
variations in rights, preferences and limitations determined for
each series (and the authority of the Board of Directors to
determine variations for future series) must be summarized on the
front or back of each certificate or the Corporation must furnish
the shareholder this information on request in writing and
without charge.
Such certificates shall be signed (either manually or in
facsimile) by the President or a Vice President and by the
Secretary or an Assistant Secretary or by such other officers
designated in the Bylaws or by the Board of Directors so to do,
and sealed with the corporate seal or a facsimile thereof. If
the person who signed (either manually or in facsimile) a share
certificate no longer holds office when the certificate is
issued, the certificate is nevertheless valid.
All certificates for shares shall be consecutively numbered
or otherwise identified. The name and address of the person to
whom the shares represented thereby are issued, with the number
of shares and date of issue, shall be entered on the stock
transfer books of the Corporation. All certificates surrendered
to the Corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a
like number of shares shall have been surrendered and cancelled,
except that in the case of a lost, destroyed or mutilated
certificate a new one may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may
prescribe.
Section 2. Transfer of Shares. Transfer of shares of
the Corporation shall be made only on the stock transfer books of
the Corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the
Corporation or a duly appointed agent of the Corporation, and on
surrender for cancellation of the certificate for such shares.
ARTICLE VI
Fiscal Year
The fiscal year of the Corporation shall begin on the first
day of January and end on the thirty-first day of December in
each year.
ARTICLE VII
Distributions
The Board of Directors may authorize and the Corporation may
make distributions to its shareholders, subject to restriction by
the Articles of Incorporation and applicable law.
ARTICLE VIII
Corporate Seal
The Board of Directors shall provide a corporate seal which
shall be circular in form and shall have inscribed thereon the
name of the Corporation and the state of incorporation and the
words "Corporate Seal."
ARTICLE IX
Waiver of Notice
Unless otherwise provided by law, a shareholder or Director
of the Corporation may waive any notice required by applicable
law, the Articles of Incorporation or these Bylaws, before or
after the date and time stated in the notice. Except as provided
below, the waiver must be in writing, be signed by the
shareholder or Director entitled to the notice, and delivered to
the Corporation for inclusion in the minutes or filing with the
Corporate records.
A Director's attendance at or participation in a meeting
waives any required notice to him of the meeting unless the
Director at the beginning of the meeting (or promptly upon his
arrival) objects to holding the meeting or transacting business
at the meeting and does not thereafter vote for or assent to
action taken at the meeting. A shareholder's attendance at a
meeting (i) waives objection to lack of notice or defective
notice of the meeting unless the shareholder at the beginning of
the meeting objects to holding the meeting or transacting
business at the meeting and (ii) waives objection to
consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice,
unless the shareholder objects to considering the matter when it
is presented.
ARTICLE X
Amendments
Unless the Articles of Incorporation, applicable law or a
resolution of the shareholders reserves this power exclusively to
the shareholders in whole or part, the Corporation's Board of
Directors may amend or repeal these Bylaws and adopt new Bylaws
at any regular or special meeting of the Board of Directors.
ARTICLE XI
Emergency Bylaws
The emergency Bylaws provided in this article shall be
operative during any emergency in the conduct of the business of
the Corporation, notwithstanding any different provision in the
preceding articles of the Bylaws or in the Articles of
Incorporation of the Corporation or in the Mississippi Business
Corporation Act. An emergency exists if a quorum of the
Corporation's Directors cannot readily be assembled because of
some catastrophic event. To the extent not inconsistent with the
provisions of this article, the Bylaws provided in the preceding
articles shall remain in effect during such emergency and upon
its termination the emergency Bylaws shall cease to be operative.
During any such emergency:
(a) A meeting of the Board of Directors may be called
by any officer or Director of the Corporation. Notice of the
meeting shall be given by the person calling the meeting only to
those Directors whom it is practicable to reach and may be given
in any practicable manner, including by publication and radio.
(b) At any such meeting of the Board of Directors, a
quorum shall consist of the Directors who are present at the
meeting. Action by the Board of Directors may be taken upon the
affirmative vote of a majority of the Directors present.
(c) The Board of Directors, either in anticipation of
or during any such emergency, may modify lines of succession to
accommodate the incapacity of any Director, officer, employee or
agent.
(d) The Board of Directors, either in anticipation of
or during any such emergency, may relocate the principal offices
or regional offices, or authorize the officers to do so.
Corporate action taken in good faith during an emergency
under this section to further the ordinary business affairs of
the Corporation binds the Corporation and may not be used to
impose liability on a Corporate Director, officer, employee or
agent.
These emergency Bylaws shall be subject to repeal of change
by further action of the Board of Directors or by action of the
shareholders, but no such repeal or change shall modify the
provisions of the next preceding paragraph with regard to action
taken prior to the time of such repeal or change. Any amendment
of these emergency Bylaws may make any further or different
provision that may be practical and necessary for the
circumstances of the emergency.
ARTICLE XII
Miscellaneous Provisions
Section 1. Execution of Instruments. All agreements,
indentures, mortgages, deeds, conveyances, transfers,
certificates, declarations, receipts, discharges, releases,
satisfactions, settlements, petitions, schedules, accounts,
affidavits, Bank bonds, undertakings, proxies and other
instruments or documents may be signed, executed, acknowledged,
verified, delivered or accepted in behalf of the Corporation by
the Chairman of the Board, or the President, or the Secretary, or
any Executive Vice President, Senior Vice President, Vice
President, or above. Any such instruments may also be executed,
acknowledged, verified, delivered or accepted in behalf of the
Corporation in such other manner and by such other officers as
the Board of Directors may from time to time direct. The
provisions of this Section 1 are supplementary to any other
provision of these Bylaws.
Section 2. Capital Expenditures. No officer or employee
may cause to be made, directly or indirectly, any capital
expenditure in excess of $500,000, without prior approval of a
majority of the Board of Directors. The term "capital
expenditure" shall include any interest in real property, or
improvements thereon, or personal property.
DEPOSIT GUARANTY CORP.
TO
SUNTRUST BANK, ATLANTA
Trustee
__________
SENIOR DEBT SECURITIES
__________
INDENTURE
Dated as of _________ __, 1995
Deposit Guaranty Corp.
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
SECTION 310(a)(1) . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 6.8
6.10
SECTION 311(a) . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . 6.13
SECTION 312(a) . . . . . . . . . . 7.1
7.2(a)
(b) . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . 7.2(c)
SECTION 313(a). . . . . . . . . . . 7.3(a)
(b) . . . . . . . . . . . . 7.3(a)
(c) . . . . . . . . . . . . 7.3(a)
(d) . . . . . . . . . . . . 7.3(b)
SECTION 314(a). . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . 1.1
10.5
(b) . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . 1.2
SECTION 315(a). . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . 5.14
SECTION 316(a). . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . 5.2
5.12
(a)(1)(B) . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . 1.4(c)
SECTION 317(a)(1) . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . 10.4
SECTION 318(a) . . . . . . . . . . 1.7
____________________
NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the
Indenture.
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions and Other Provisions
of General Application . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . 2
Bank Subsidiary . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . 7
Principal Subsidiary . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . 8
Security Register . . . . . . . . . . . . . . . 8
Security Registrar . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . 9
Vice President . . . . . . . . . . . . . . . . . 9
Voting Stock . . . . . . . . . . . . . . . . . . 9
Yield to Maturity . . . . . . . . . . . . . . . 9
Section 1.2. Compliance Certificates and
Opinions . . . . . . . . . . . . 9
Section 1.3. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . 10
Section 1.4. Acts of Holders; Record Dates . . 11
Section 1.5. Notices, Etc., to Trustee and
Company . . . . . . . . . . . . . 13
Section 1.6. Notice to Holders; Waiver . . . . 13
Section 1.7. Conflict with Trust Indenture
Act . . . . . . . . . . . . . . . 14
Section 1.8. Effect of Headings and Table of
Contents . . . . . . . . . . . . 14
Section 1.9. Successors and Assigns . . . . . 14
Section 1.10. Separability Clause . . . . . . . 14
Section 1.11. Benefits of Indenture . . . . . . 15
Section 1.12. Governing Law . . . . . . . . . . 15
Section 1.13. Legal Holidays . . . . . . . . . 15
ARTICLE II
SECURITY FORMS
Section 2.1. Forms Generally . . . . . . . . . 15
Section 2.2. Form of Face of Security . . . . 16
Section 2.3. Form of Reverse of Security . . . 18
Section 2.4. Form of Legend for Global
Securities . . . . . . . . . . . 24
Section 2.5. Form of Trustee's Certificate of
Authentication . . . . . . . . . 25
ARTICLE III
THE SECURITIES
Section 3.1. Amount Unlimited; Issuable in
Series . . . . . . . . . . . . . 26
Section 3.2. Denominations . . . . . . . . . . 29
Section 3.3. Execution, Authentication,
Delivery and Dating . . . . . . . 30
Section 3.4. Temporary Securities . . . . . . 32
Section 3.5. Registration, Registration of
Transfer and Exchange . . . . . . 33
Section 3.6 Mutilated, Destroyed,
Lost and Stolen Securities. . . . 35
Section 3.7. Payment of Interest; Interest
Rights Preserved . . . . . . . . 36
Section 3.8. Persons Deemed Owners . . . . . . 38
Section 3.9. Cancellation . . . . . . . . . . 38
Section 3.10. Computation of Interest . . . . . 38
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . 39
Section 4.2. Application of Trust Money . . . 40
ARTICLE V
REMEDIES
Section 5.1. Events of Default . . . . . . . . 41
Section 5.2. Acceleration of Maturity;
Rescission and Annulment . . . . 43
Section 5.3. Collection of Indebtedness and
Suits for Enforcement by
Trustee . . . . . . . . . . . . . 44
Section 5.4. Trustee May File Proofs of
Claim. . . . . . . . . . . . . . 45
Section 5.5. Trustee May Enforce Claims
Without Possession of
Securities . . . . . . . . . . . 46
Section 5.6. Application of Money Collected . 46
Section 5.7. Limitation on Suits . . . . . . . 46
Section 5.8. Unconditional Right of Holders
to Receive Principal, Premium
and Interest . . . . . . . . . . 47
Section 5.9. Restoration of Rights and
Remedies . . . . . . . . . . . . 48
Section 5.10. Rights and Remedies Cumulative . 49
Section 5.11. Delay or Omission Not Waiver . . 49
Section 5.12. Control by Holders . . . . . . . 49
Section 5.13. Waiver of Past Defaults . . . . . 50
Section 5.14. Undertaking for Costs . . . . . . 50
Section 5.15. Waiver of Stay or Extension
Laws . . . . . . . . . . . . . . 51
ARTICLE VI
THE TRUSTEE
Section 6.1. Certain Duties and
Responsibilities . . . . . . . . 51
Section 6.2. Notice of Defaults . . . . . . . 51
Section 6.3. Certain Rights of Trustee . . . . 52
Section 6.4. Not Responsible for Recitals or
Issuance of Securities . . . . . 53
Section 6.5. May Hold Securities . . . . . . . 54
Section 6.6. Money Held in Trust . . . . . . . 54
Section 6.7. Compensation and Reimbursement . 54
Section 6.8. Disqualification; Conflicting
Interests . . . . . . . . . . . . 55
Section 6.9. Corporate Trustee Required;
Eligibility . . . . . . . . . . . 55
Section 6.10. Resignation and Removal;
Appointment of Successor. . . . . 56
Section 6.11. Acceptance of Appointment by
Successor . . . . . . . . . . . . 58
Section 6.12. Merger, Conversion,
Consolidation or Succession to
Business . . . . . . . . . . . . 59
Section 6.13. Preferential Collection of
Claims Against Company . . . . . 60
Section 6.14. Appointment of Authenticating
Agent . . . . . . . . . . . . . . 60
ARTICLE VII
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names
and Addresses of Holders . . . . 62
Section 7.2 Preservation of Information;
Communications to Holders . . . . 63
Section 7.3. Reports by Trustee . . . . . . . 63
Section 7.4. Reports by Company . . . . . . . 64
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . 64
Section 8.2. Successor Corporation to Be
Substituted . . . . . . . . . . . 65
Section 8.3. Opinion of Counsel to Be Given
Trustee . . . . . . . . . . . . . 66
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures Without
Consent of Holders . . . . . . . 66
Section 9.2. Supplemental Indentures with
Consent of Holders . . . . . . . 68
Section 9.3. Execution of Supplemental
Indentures . . . . . . . . . . . 70
Section 9.4. Effect of Supplemental
Indentures . . . . . . . . . . . 70
Section 9.5. Conformity with Trust Indenture . 70
Section 9.6. Reference in Securities to
Supplemental Indentures. . . . 70
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium
and Interest . . . . . . . . . . 72
Section 10.2. Maintenance of Office or Agency . 72
Section 10.3. Vacancy in the Office of
Trustee . . . . . . . . . . . . . 73
Section 10.4 Money for Securities Payments
to Be Held in Trust . . . . . . . 73
Section 10.5. Statement by Officers as to
Default . . . . . . . . . . . . . 75
Section 10.6. Existence . . . . . . . . . . . . 75
Section 10.7. Limitation on Disposition of
Voting Stock of, and Merger or
Sale of Assets by, Principal
Subsidiaries . . . . . . . . . . 76
Section 10.8. Waiver of Certain Covenants . . . 77
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1. Applicability of Article . . . . 77
Section 11.2. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . 78
Section 11.3. Selection by Trustee of
Securities to Be Redeemed . . . . 78
Section 11.4. Notice of Redemption . . . . . . 79
Section 11.5. Deposit of Redemption Price . . . 80
Section 11.6. Securities Payable on Redemption
Date . . . . . . . . . . . . . . 80
Section 11.7. Securities Redeemed in Part . . . 81
ARTICLE XII
SINKING FUNDS
Section 12.1. Applicability of Article . . . . 81
Section 12.2. Satisfaction of Sinking Fund
Payments with Securities . . . . 82
Section 12.3. Redemption of Securities for
Sinking Fund . . . . . . . . . . 82
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.1. Applicability of Article;
Company's Option to Effect
Defeasance or Covenant
Defeasance . . . . . . . . . . . 83
Section 13.2. Defeasance and Discharge . . . . 83
Section 13.3. Covenant Defeasance . . . . . . . 84
Section 13.4 Conditions to Defeasance or
Covenant Defeasance . . . . . . . 84
Section 13.5. Deposited Money and U.S.
Government Obligations to Be
Held in Trust; Other
Miscellaneous Provisions . . . . 88
Section 13.6. Reinstatement . . . . . . . . . . 88
____________________
NOTE: This table of contents shall not, for any
purpose, be deemed to be a part of the
Indenture.
INDENTURE, dated as of __________ __, 1995,
between Deposit Guaranty Corp., a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the "Company"), having its
principal offices at 210 East Capitol Street, Jackson,
Mississippi, and SunTrust Bank, Atlanta, a banking
corporation duly organized and existing under the laws of
the State of Georgia, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution
and delivery of this Indenture to provide for the
issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or
more series as in this Indenture provided.
All things necessary to make this Indenture a
valid agreement of the Company, 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 or of series
thereof, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1. 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, either
directly or by reference therein, have the
meanings assigned to them therein;
(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; and
(4) 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 1.4.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person
authorized by the Trustee pursuant to Section 6.14 to act
on behalf of the Trustee to authenticate Securities of
one or more series.
"Bank Subsidiary" shall mean any Subsidiary
which is engaged in (i) a commercial, merchant or other
banking business, or (ii) a trust business.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee
of that board or any directors or officers of the Company
to whom such board of directors shall have delegated its
authority to act hereunder.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"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 Securities Exchange Act of 1934, 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.
"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" means a
written request or order signed in the name of the
Company by its Chairman of the Board, its Vice Chairman
of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of
the Trustee in Atlanta, Georgia at which at any
particular time its corporate trust business shall be
principally administered.
"corporation" means a corporation, association,
company, joint-stock company or business trust.
"Defaulted Interest" has the meaning specified
in Section 3.7.
"Depositary" means, with respect to the
Securities of any series issuable or issued in whole or
in part in the form of one or more Global Securities, the
Person designated as Depositary for such series by the
Company pursuant to Section 3.1, which Person shall be a
clearing agency registered under the Securities Exchange
Act of 1934, as amended; and if at any time there is more
than one such Person, "Depositary," as used with respect
to the Securities of any series, shall mean the
Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in
Section 5.1.
"Exchange Act" means the Securities Exchange
Act of 1934 as it may be amended and any successor act
thereto.
"Global Security" means a Security bearing the
legend prescribed in Section 2.4 evidencing all or part
of a series of Securities, authenticated and delivered to
the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
"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. The term "Indenture" shall also
include the terms of particular series of Securities
established as contemplated by Section 3.1.
"interest," when used with respect to an
Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect
to any Security, means the Stated Maturity of an
installment of interest on such Security.
"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.
"Officers' Certificate" means a certificate
signed by the Chairman of the Board, a Vice Chairman of
the Board, the President or a Vice President, Chief
Financial Officer or Controller and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
One of the officers signing an Officers' Certificate
given pursuant to Section 10.5 shall be the principal
executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who
shall be acceptable to the Trustee.
"Original Issue Discount Security" means any
Security which provides for an amount less than the
principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"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 cancelled by
the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities for whose payment or
redemption money in the necessary amount has
been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by
the Company (if the Company shall act as its
own Paying Agent) for the Holders of such
Securities; provided that, if such Securities
are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture
or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities which have been paid
pursuant to Section 3.6 or 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, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would
be due and payable as of the date of such determination
upon acceleration of the Maturity thereof pursuant to
Section 5.2, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency
units shall be the U.S. dollar equivalent, determined in
the manner provided as contemplated by Section 3.1 on the
date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date
of original issuance of such Security of the amount
determined as provided in (i) above) of such Security,
and (iii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the
Company 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 so
to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company 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, joint venture, trust, unincorporated
organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to
the Securities of any series, means the place or places
where the principal of and any premium and interest on
the Securities of that series are payable as specified as
contemplated by Section 3.1.
"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 3.6 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.
"Principal Subsidiary" means Deposit Guaranty
National Bank, a national banking association, Commercial
National Bank, a national banking association, Citizens
National Bank, a national banking association or
Merchants National Bank, a national banking association,
and any successors to such banks.
"Redemption Date", when used with respect to
any Security to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to
any Security to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable
on any Interest Payment Date on the Securities of any
series means the date specified for that purpose as
contemplated by Section 3.1.
"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 knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the
first recital of this Indenture and more particularly
means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar"
have the respective meanings specified in Section 3.5.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.7.
"Stated Maturity", when used with respect to
any Security or any installment of principal thereof or
interest thereon, means the date specified in such
Security as the fixed date on which the principal of such
Security or such installment of principal or interest is
due and payable.
"Subsidiary" means a corporation more than 50%
of the outstanding Voting Stock of which is owned,
directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"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, "Trustee" as used with
respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"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.
"Vice President", when used with respect to the
Company or the Trustee, means any vice president (but
shall not include any assistant vice president), whether
or not designated by a number or a word or words added
before or after the title "vice president."
"Voting Stock" means stock which ordinarily has
voting power for the election of at least a majority of
the board 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.
"Yield to Maturity," when used with respect to
any Original Issue Discount Security, shall mean the
yield to maturity, if any, set forth in the prospectus
supplement relating thereto, which shall be equal to the
yield to maturity, if any, set forth on the face of such
Security.
Section 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company 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 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 shall include
(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, he has made such
examination or investigation as is necessary to
enable him 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 1.3. 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 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 his 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
stating that the information with respect to such factual
matters is in the possession of the Company, 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.
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 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action
provided 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. 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 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided
in this Section.
Without limiting the generality of the
foregoing, a Holder, including a Depositary that is a
Holder of a Global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted in
this Indenture to be made, given or taken by Holders, and
a Depositary that is a Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of
interest in any such Global Security.
(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 the execution thereof. Where
such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
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 may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the
record date for the purpose of determining the Holders of
Securities of any series 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 Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of
Securities of such series 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 most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation
or vote, as the case may be. With regard to any record
date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of
such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of Securities shall be
proved by the Security Register.
(e) 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 or the
Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) 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 1.5. Notices, Etc., to Trustee and Company.
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 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, 58 Edgewood Avenue, Annex, 4th
Floor, P.O. Box 4625, Atlanta, Georgia, 30303,
Attention: Bryan Echols, or
(2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class
postage prepaid, to it at the address of its
principal office in Jackson, Mississippi
specified in the first paragraph of this
instrument or at any other address previously
furnished in writing to the Trustee by the
Company.
Section 1.6. 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 his 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.
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 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act
that is required under such Act to be a part of and
govern this Indenture, 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 1.8. 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.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in
the Securities 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,
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 shall be
governed by and construed in accordance with the laws of
the State of New York.
Section 1.13. Legal Holidays.
In any case where any Interest Payment Date,
Redemption 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 (other than a provision of the
Securities of any series which specifically states that
such provision shall apply in lieu of this Section))
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 Redemption Date,
or at the Stated Maturity, provided that no interest
shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE II
Security Forms
Section 2.1. Forms Generally.
The Securities of each series shall be in
substantially the form set forth in this Article, or in
such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures
supplemental hereto, in each case 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, consistently herewith,
be determined by the officers of the Company executing
such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is
established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and
delivery of such Securities.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the
officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
Section 2.2. Form of Face of Security.
THIS SECURITY IS NOT A DEPOSIT AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENTAL AGENCY.
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
DEPOSIT GUARANTY CORP.
. . . . . . . . . . . . . . . . . . . .
No. ....... $ ......
Deposit Guaranty Corp., a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the "Company," which term
includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby
promises to pay to ...................................,
or registered assigns, the principal sum of
..................... Dollars on
............................. [if the Security is to bear
interest prior to Maturity, insert -- , and to pay
interest thereon from ............. or from the most
recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on .............
and ................ in each year, commencing .........,
at the rate of ....% per annum, until the principal
hereof is paid or made available for payment [if
applicable, insert -- , and (to the extent that the
payment of such interest shall be legally enforceable) at
the rate of ....% per annum on any overdue principal and
premium and on any overdue installment of interest]. 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 (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest, which shall be the ........ or
.......... (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor
Securities) 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 Holders of Securities of this series 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 of this series may be
listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior
to Maturity, insert -- The principal of this Security
shall not bear interest except in the case of a default
in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at
the rate of ....% per annum (to the extent that the
payment of such interest shall be legally enforceable),
which shall accrue from the date of such default in
payment to the date payment of such principal has been
made or duly provided for. Interest on any overdue
principal shall be payable on demand.
Payment of the principal of (and premium, if
any) and [if applicable, insert -- any such] interest on
this Security will be made at the office or agency of the
Company maintained for that purpose in ..........., in
such coin or currency of [the United States of America]
[insert other currency, if applicable] as at the time of
payment is legal tender for payment of public and private
debts [if applicable, insert -- ; 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].
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 or on behalf of 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:
DEPOSIT GUARANTY CORP.
By.....................
Attest:
...........................
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue
of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________ __,
1995 (herein called the "Indenture"), between the Company
and SunTrust Bank, Atlanta, 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 Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the
series designated on the face hereof[, limited in
aggregate principal amount to $..........].
[If applicable, insert -- The Securities of
this series are subject to redemption upon not less than
30 days' notice by first-class mail, [if applicable,
insert -- (1) on ........... in any year commencing with
the year ...... and ending with the year ...... through
operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount,
and (2)] at any time [on or after .........., 19..], as a
whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [on or before
................, __%, and if redeemed] during the 12-
month period beginning ............ of the years
indicated
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to .....% of
the principal amount, together in the case of any such
redemption [if applicable, insert -- (whether through
operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert -- The Securities of
this series are subject to redemption upon not less than
30 days' notice by first-class mail, (1) on ............
in any year commencing with the year .... and ending with
the year .... through operation of the sinking fund for
this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the
table below, and (2) at any time [on or after
............], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12-
month period beginning ............ of the years
indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to .....% of
the principal amount, together in the case of any such
redemption (whether through operation of the sinking fund
or otherwise) with accrued interest to the Redemption
Date, but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of
business on the relevant Record Date referred to on the
face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company
may not, prior to ............., redeem any Securities of
this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of,
any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to
the Company (calculated in accordance with generally
accepted financial practice) of less than ......% per
annum.]
[The sinking fund for this series provides
for the redemption on .............. in each year
beginning with the year ..... and ending with the year
.... of [not less than $........... ("mandatory sinking
fund") and not more than] $.......... aggregate principal
amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments
otherwise required to be made [if applicable, insert --
in the inverse order in which they become due].]
[If the Security is subject to redemption,
insert -- In the event of redemption of this Security in
part only, a new Security or Securities of this series
and of like tenor for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert -- This Security is not
subject to redemption prior to maturity.]
[If applicable, insert -- The Indenture
contains provisions for defeasance at any time of [(a)
(the entire indebtedness evidenced by this Security] (and
(b)) [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set
forth therein, which provisions apply to this Security.]
[If the Security is not an Original Issue
Discount Security, insert -- The principal of this
Security may be declared due and payable upon the
occurrence of an Event of Default with respect to
Securities of this series in the manner and with the
effect provided in the Indenture.]
[If the Security is an Original Issue Discount
Security, insert -- The principal of this Security may be
declared due and payable upon the occurrence of an Event
of Default with respect to Securities of this series in
the manner and with the effect provided in the Indenture.
Such amount shall be equal to -- insert formula for
determining the amount. Upon payment [if applicable,
insert -- (i)] of the amount of principal so declared due
and payable [if applicable, insert -- and (ii) of
interest on any overdue principal and overdue interest
(in each case to the extent that the payment of such
interest shall be legally enforceable)], all of the
Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of
this series shall terminate.]
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company
and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of the
Holders of not less than a majority in principal amount
of the Securities at the time Outstanding of all series
to be affected (voting as a single class). The Indenture
also contains provisions permitting the Holders of
specified percentages in principal amount of the
Securities of each series at the time Outstanding on
behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such
consent or waiver by the Holder of 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 herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture 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 registerable 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 of this series and of like tenor, of
authorized denominations and for the same aggregate
principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only
in registered form without coupons in denominations of
$....... and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations
therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of
Securities of this series 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 Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned
to them in the Indenture.
Section 2.4. Form of Legend for Global Securities.
Any Global Security authenticated and delivered
hereunder shall bear a legend in substantially the
following form:
"This Security is a Global Security within
the meaning of the Indenture hereinafter
referred to and is registered in the name of a
Depositary or a nominee thereof. This Security
may not be transferred to, or registered or
exchanged for Securities registered in the name
of, any Person other than the Depositary or a
nominee thereof and no such transfer may be
registered, except in the limited circumstances
described in 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 2.5. Form of Trustee's Certificate of
Authentication.
The Trustee's certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
SUNTRUST BANK, ATLANTA
________________________________,
As Trustee
By..............................
Authorized Signatory
ARTICLE III
The Securities
Section 3.1. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to a
Board Resolution and, subject to Section 3.3, set forth,
or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities
of any series:
(1) the title of the Securities of the
series (which shall distinguish the Securities
of the series from Securities of any other
series);
(2) any limit upon the aggregate
principal amount of the Securities of the
series which may be authenticated and delivered
under this Indenture (except for Securities
authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except
for any Securities which, pursuant to Section
3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a
Security of the series shall be payable, if
other than 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;
(4) the date or dates on which the
principal of the Securities of the series is
payable;
(5) the rate or rates at which the
Securities of the series shall bear interest,
if any, the date or dates from which such
interest shall accrue, the Interest Payment
Dates on which any such interest shall be
payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) the place or places where the
principal of and any premium and interest on
Securities of the series shall be payable;
(7) the period or periods within which,
the price or prices at which and the terms and
conditions upon which Securities of the series
may be redeemed, in whole or in part, at the
option of the Company;
(8) the obligation, if any, of the
Company to redeem or purchase Securities of the
series pursuant to any sinking fund or
analogous provisions or at the option of a
Holder thereof and the period or periods within
which, the price or prices at which and the
terms and conditions upon which Securities of
the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000
and any integral multiple thereof, the
denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency
units in which payment of the principal of and
any premium and interest on any Securities of
the series shall be payable if other than the
currency of the United States of America and
the manner of determining the equivalent
thereof in the currency of the United States of
America for purposes of the definition of
"Outstanding" in Section 1.1;
(11) if the amount of payments of
principal of or any premium or interest on any
Securities of the series may be determined with
reference to an index or formula, the manner in
which such amounts shall be determined;
(12) if the principal of or any premium
or interest on any Securities of the series is
to be payable, at the election of the Company
or a Holder thereof, in one or more currencies
or currency units other than that or those in
which the Securities are stated to be payable,
the currency, currencies or currency units in
which payment of the principal of and any
premium and interest on Securities of such
series as to which such election is made shall
be payable, and the periods within which and
the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount
thereof, the portion of the principal amount of
Securities of the series which shall be payable
upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;
(14) the application, if any, of either
or both of Section 13.2 and Section 13.3 to the
Securities of the series;
(15) whether the Securities of the series
shall be issuable in whole or in part in the
form of one or more Global Securities and, in
such case, the Depositary or Depositaries for
such Global Security or Global Securities and
any circumstances other than those set forth in
Section 3.5 in which any such Global Security
may be transferred to, and registered and
exchanged for Securities registered in the name
of, a Person other than the Depositary for such
Global Security or a nominee thereof and in
which any such transfer may be registered;
(16) if other than as specified in
Section 5.1, the Events of Default applicable
with respect to the Securities of the series;
(17) if other than as specified in
Section 5.2, the Events of Default the
occurrence of which would permit the
declaration of the acceleration of Maturity
pursuant to Section 5.2;
(18) any other covenant or warranty
included for the benefit of Securities of the
series in addition to (and not inconsistent
with) those included in this Indenture for the
benefit of Securities of all series, or any
other covenant or warranty included for the
benefit of Securities of the series in lieu of
any covenant or warranty included in this
Indenture for the benefit of Securities of all
series, or any provision that any covenant or
warranty included in this Indenture for the
benefit of Securities of all series shall not
be for the benefit of Securities of such
series, or any combination of such covenants,
warranties or provisions; and
(19) any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture, except as
permitted by Section 9.1(5)).
All Securities of any one series shall be
substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to
Section 3.3) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above
or in any such indenture supplemental hereto.
If any of the terms of a series are established
by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate setting forth the terms of
such series.
Section 3.2. Denominations.
The Securities of each series shall be issuable
in registered form without coupons in such denominations
as shall be specified as contemplated by Section 3.1. In
the absence of any such provisions with respect to the
Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 3.3. Execution, Authentication, Delivery and
Dating.
The Securities shall be executed on behalf of
the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company shall bind the Company,
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.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company
to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the
Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of
the series have been established in or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and
3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall
be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has
been established by or pursuant to Board
Resolution as permitted by Section 2.1, that
such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have
been established by or pursuant to Board
Resolution as permitted by Section 3.1, that
such terms have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when
authenticated and delivered by the Trustee and
issued by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, will constitute valid and legally
binding obligations of the Company enforceable
in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights and to general equity
principles.
If such form or terms have been so established, the
Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1
and of the preceding paragraph, if all Securities of a
series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or
the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior
to the time of authentication of each Security of such
series if such documents are delivered at or prior to the
authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its
authentication.
No Security 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 of an authorized signatory, and such
certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
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 3.9, for all purposes of this
Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 3.4. Temporary Securities.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate
insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine,
as evidenced by their execution of such Securities.
If temporary Securities of any series are
issued, the Company will cause definitive Securities of
that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series
at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of
the same series, of any authorized denominations and of a
like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and
tenor.
Section 3.5. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the
corporate trust office of SunTrust Bank, Atlanta a
register (the register maintained in such office being
herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it or
the Security Registrar may prescribe, the Company shall
provide for the registration of Securities and of
transfers of Securities. SunTrust Bank, Atlanta is
hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of
any Security of any series at the office or agency in a
Place of Payment for that series, 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 the same series, of any
authorized denominations, and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any
series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of
the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange 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.
No service charge shall be made for any
registration of transfer or exchange of Securities, but
the Company 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 Section 3.4, 9.6 or 13.7 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any
series during a period beginning at the opening of
business 15 days before the day of the mailing of a
notice of redemption of Securities of that series
selected for redemption under Section 11.3 and ending at
the close of business on the day of such mailing, or (ii)
to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in
part.
Notwithstanding the foregoing and except as
otherwise specified or contemplated by Section 3.1, no
Global Security shall be exchangeable pursuant to this
Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and no transfer of a Global
Security of any series may be registered to, any Person
other than the Depositary for such Security or its
nominee, unless (1) such Depositary (A) notifies the
Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) ceases to be a
clearing agency registered under the Securities Exchange
Act of 1934, as amended, (2) the Company executes and
delivers to the Trustee a Company Order that such Global
Security shall be so exchangeable and the transfer
thereof so registerable, or (3) there shall have occurred
and be continuing an Event of Default, or an event which
with notice or lapse of time or both would become an
Event of Default, with respect to the Securities
evidenced by such Global Security. Upon the occurrence
in respect of any Global Security of any series of any
one or more of the conditions specified in clause (1),
(2) or (3) of the preceding sentence or such other
conditions as may be specified as contemplated by Section
3.1 for such series, such Global Security may be
exchanged for Securities registered in the names of, and
the transfer of such Global Security may be registered
to, such Persons (including Persons other than the
Depositary with respect to such series and its nominees)
as such Depositary shall direct. Notwithstanding any
other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, any Global
Security shall also be a Global Security and shall bear
the legend specified in Section 204 except for any
Security authenticated and delivered in exchange for, or
upon registration of transfer of, a Global Security
pursuant to the preceding sentence.
Section 3.6 Mutilated, Destroyed,
Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by 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
destroyed, lost or stolen Security, a new Security of the
same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
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 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 of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, 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 of that
series 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 3.7. Payment of Interest; Interest Rights
Preserved.
Except as otherwise provided as contemplated by
Section 3.1 with respect to any series of Securities,
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 of any series
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 shall be paid by the Company, at its election,
either 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 of such series (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
of such series 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 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 10 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 of Securities of such
series at his 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 of
such series (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 of any
series 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 3.8. Persons Deemed Owners.
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name 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 3.7) any interest on such Security and for all
other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 3.9. Cancellation.
All Securities surrendered for payment,
redemption, registration of transfer or exchange or for
credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company
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 cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order, subject to
any requirements of law.
Section 3.10. Computation of Interest.
Except as otherwise specified as contemplated
by Section 3.1 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
Section 4.1. 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), and the
Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(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 3.6 and (ii) Securities for
whose payment money has theretofore been
deposited in trust or segregated and held in
trust by the Company and thereafter repaid to
the Company or discharged from such trust, as
provided in Section 10.4) 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, or
(iii) are to be called for
redemption within one year under
arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the
name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or
(iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on
such Securities not theretofore delivered to
the Trustee for cancellation, for principal and
any premium and interest to the date of such
deposit (in the case of Securities which have
become due and payable) or to the Stated
Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company; and
(3) 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, if any, of the
Company to the Trustee under Section 6.7 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 Section 4.2 and the last
paragraph of Section 10.4 shall survive.
Section 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph
Of Section 10.4, all money deposited with the Trustee
pursuant to Section 4.1 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 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 money has been deposited with the Trustee.
ARTICLE V
Remedies
Section 5.1. Events of Default.
"Event of Default," wherever used herein with
respect to Securities of any particular series, means any
one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) default in the due and punctual
payment of any instalment of interest upon any
of the Securities of that series as and when
the same shall become due and payable and
continuance of such default for a period of 30
days; or
(b) default in the due and punctual
payment of the principal of (or premium, if
any, on) any of the Securities of that series
as and when the same shall become due and
payable either at maturity, by declaration as
authorized by this Indenture, or otherwise; or
(c) default in the deposit of any sinking
fund payment, when and as due by the terms of a
Security of that series; or
(d) failure on the part of the Company
duly to observe or perform any other of the
covenants or agreements on the part of the
Company set forth in the Securities of that
series or in this Indenture (other than those
set forth exclusively in the terms of
Securities of any series other than that
series, or those which have been included in
this Indenture for the benefit of Securities of
any series other than that series) continued
for a period of 60 days after there has been
given, by registered or certified mail, to the
Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in
principal amount of the Securities of that
series at the time outstanding, a written
notice specifying such failure and requiring
the same to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the entry of a decree or order by a
court having jurisdiction in the premises
granting relief in respect of the Company or
any Principal Subsidiary in an involuntary case
under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law adjudging the Company or any
Principal Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition
seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company
or any Principal Subsidiary under any
applicable Federal or State law, or appointing
a receiver, liquidator, custodian, assignee,
trustee, sequestrator (or other similar
official) of the Company or any Principal
Subsidiary, or of any substantial part of the
respective properties of either, or ordering
the winding up or liquidation of the affairs of
either, and the continuance of any such decree
or order unstayed and in effect for a period of
60 consecutive days; or
(f) the institution by the Company or any
Principal Subsidiary of proceedings to be
adjudicated a bankrupt or insolvent, or the
consent by the Company or any Principal
Subsidiary to the institution of bankruptcy or
insolvency proceedings against it, or the
filing by the Company or any Principal
Subsidiary of a petition or answer or consent
seeking reorganization or relief under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar
law, or the consent by the Company or any
Principal Subsidiary to the filing of any such
petition or to the appointment of a receiver,
liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the
Company or any Principal Subsidiary, or of any
substantial part of the respective properties
of either, or the making by the Company or any
Principal Subsidiary of an assignment for the
benefit of creditors, or the admission by the
Company or any Principal Subsidiary in writing
of its inability to pay its debts generally as
they become due, or the taking of corporate
action by the Company or any Principal
Subsidiary in furtherance of any such action;
or
(g) any other Event of Default provided
with respect to Securities of that series.
Section 5.2. Acceleration of Maturity; Rescission
and Annulment.
In case one or more of the Events of Default
specified in Section 5.1 shall have occurred and be
continuing with respect to any particular series of
Securities, then and in each and every such case, unless
the principal of all of the Securities of that series
shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of that series then
Outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by Holders), may
declare the principal or, in the case of Original Issue
Discount Securities, such amount of principal as may be
provided for in such Securities, of all the Securities of
that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture
or in the Securities of that series contained to the
contrary notwithstanding. This provision, however, is
subject to the condition that if, at any time after such
principal or such amount of principal, as the case may
be, shall have been so declared due and payable, and
before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all Securities of
that series and the principal of (and premium, if any,
on) any and all Securities of that series which shall
have become due otherwise than by acceleration (with
interest on overdue installments of interest (to the
extent that payment of such interest is enforceable under
applicable law) and on such principal (and premium, if
any) at the rate of interest prescribed therefor by such
Securities, to the date of such payment or deposit and
the expenses of the Trustee, including the reasonable
fees of its counsel, and any and all defaults under this
Indenture with respect to the Securities of the series,
other than the nonpayment of principal of (and premium,
if any) and accrued interest on the Securities of that
series which shall have become due by acceleration shall
have been remedied -- then and in every such case the
holders of a majority in aggregate principal amount of
the Securities of that series then outstanding, by
written notice to the Company and to the Trustee, may
waive all defaults and rescind and annul such declaration
and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent
thereon.
In case the Trustee shall have proceeded to
enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue
as though no such proceeding had been taken.
Section 5.3. 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 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.
If an Event of Default with respect to
Securities of any series 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 of such series 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 5.4. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to
the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be
authorized 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 6.7.
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, the Trustee may vote on behalf of the Holders
for the election of a trustee in bankruptcy or similar
official and may be a member of a creditors' or other
similar committee.
Section 5.5. 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, be for
the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.6. 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 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 6.7; and
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.
Section 5.7. Limitation on Suits.
No Holder of any Security of any series 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 with respect to the Securities
of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities
of that series 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 reasonable indemnity 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 of that series;
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 5.8. 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 3.7) any interest on such Security on the
Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date)
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 5.9. 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 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
3.6, 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.
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. 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 of any series 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 of such
series, provided that
(1) such direction shall not be in
conflict with any rule of law or with this
indenture,
(2) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section
6.1, the Trustee shall have the right to
decline to follow any such direction if the
Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine
that the proceeding so directed would involve
the Trustee in personal liability.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(1) in the payment of the principal of or
any premium or interest on any Security of such
series, 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 of such
series affected.
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 Trustee.
Section 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE VI
The Trustee
Section 6.1. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall
be subject to the provisions of this Section.
Section 6.2. Notice of Defaults.
If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such
default known to the Trustee as and to the extent
provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character
specified in Section 5.1(d) with respect to Securities of
such series, 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
Securities of such series.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(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 mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order
and any resolution of the Board of Directors
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 other evidence be herein specifically
prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate,
except that in the case of any such Officers'
Certificate which by any provision hereof is
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not it
conforms to the requirements of the Indenture;
(d) the Trustee may consult with counsel
and the 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, except that in the case of any such
Opinion of Counsel which by any provision
hereof is specifically required to be furnished
to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether
or not it conforms to the requirements of the
Indenture;
(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 reasonable
security or indemnity against the costs,
expenses and liabilities which might be
incurred by it in compliance with such request
or direction;
(f) 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 be entitled to examine
the books, records and premises of the Company,
personally or by agent or attorney; 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 6.4. 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, 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. The
Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent
of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with
the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6. 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.
Section 6.7. Compensation and Reimbursement.
The Company agrees
(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 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 the expenses and disbursements
of its agents and counsel), except any such
expense, disbursement or advance as may be
attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee and its
directors, officers, agents and employees for,
and to hold each of them harmless against, any
loss, liability or expense incurred without
negligence or bad faith on its or their
respective parts, as the case may be, arising
out of or in connection with the acceptance or
administration of the trust or trusts
hereunder, including the costs and expenses of
defending against any claim or liability in
connection with the exercise or performance of
any of the powers or duties of the Trustee
hereunder.
As security for the performance of the
obligations of the Company under this Section the Trustee
shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of
principal of, premium, if any, or interest, if any, on
particular Securities.
The provisions of this Section shall survive
the termination of this Indenture or the resignation or
removal of the Trustee.
Section 6.8. 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 6.9. 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 and its
Corporate Trust Office in the United States or any State
or Territory thereof or the District of Columbia. 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 with
respect to the Securities of one or more series by giving
written notice thereof to the Company. 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
with respect to the Securities of such series.
(c) The Trustee may be removed at any time
with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
section 6.8 after written request therefor by the
Company or by any 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 6.9 and shall fail to resign after
written request therefor by the Company 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,
conversion or liquidation,
then in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities, 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 himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor
Trustee or Trustees.
(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, with respect to
the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect
to the Securities of any particular series) 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 with respect to the Securities of any
series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding
Securities of such series delivered to the Company 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 with respect to the
Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series 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 of such series for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the
manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to
the Securities of such series and the address of its
Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company 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 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 with respect to the Securities of one
or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the
Securities of one or more series 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 and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3)
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 Trustees cotrustees 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 with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company 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
hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor
Trustee, the Company 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 paragraph (a) and (b) of
this Section, as the case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under
this Article.
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.
If and when the Trustee shall be or become a
creditor of the Company (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 (or any such
other obligor).
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents (which may be an Affiliate of the Company) with
respect to one or more series of Securities which shall
be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon
original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 3.6, 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 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 may at any time terminate the
agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the
Company. 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 of Securities of the
series with respect to which such Authenticating Agent
will serve, 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.
Unless the Authenticating Agent has been
appointed by the Trustee at the request of the Company,
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 6.7.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities
of such series 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 of the series
designated therein referred to in the within-mentioned
Indenture.
SUNTRUST BANK, ATLANTA
As Trustee
By.........................
As Authenticating Agent
By.........................
Authorized Signatory
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than June 30
and December 31 in each year, a list for each
series Outstanding, in such form as the Trustee
may reasonably require, of the names and
addresses of the Holders of Securities of each
such series as of the preceding June 15 or
December 15, and
(b) at such other times as the Trustee
may request in writing, within 30 days after
the receipt by the Company 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, if
it is acting as such.
Section 7.2. Preservation of Information;
Communications 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 7.1 and
the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar, if it is
acting as such. The Trustee may destroy any list
furnished to it as provided in Section 7.1 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 of Securities, by receiving
and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any
director, officer, employee or agent of either of them
shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.3. 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 July 15 and shall be transmitted by the
next succeeding September 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. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 7.4. Reports by Company.
The Company 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 Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only
on Certain Terms.
Nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or
merger of the Company with or into any other Person, or
successive consolidations or mergers in which the Company
or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or
lease of the properties and assets of the Company
substantially as an entirety to any other Person
authorized to acquire and operate the same; provided,
however, that the Person formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a corporation organized and validly
existing under the laws of the United States of America,
any State thereof or the District of Columbia; provided
further, the Company hereby covenants and agrees, that
upon any such consolidation, merger, transfer, conveyance
or lease, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all of
the Securities, according to their tenor, and the due and
punctual performance and observance of all of the
covenants and conditions of this Indenture to be
performed by the Company shall be expressly assumed by
supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the
Person (if other than the Company) formed by such
consolidation, or into which the Company shall have been
merged, or by the Person which shall have acquired such
property; and further provided that immediately after
giving effect to such transaction, no Event of Default,
and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have
happened and be continuing.
Section 8.2. Successor Corporation to Be Substituted.
In case of any such consolidation, merger,
transfer, conveyance or lease and upon the assumption by
the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to
the Trustee, of the due and punctual payment of the
principal of (and premium, if any) and interest, if any,
on all of the Securities and the due and punctual
performance of all of the covenants and conditions of
this Indenture to be performed by the Company, such
successor Person shall succeed to and be substituted for
the Company, with the same effect as if it had been named
herein as the Company, and thereafter, except in the case
of a lease, the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and
the Securities. Such successor Person thereupon may
cause to be signed, and may issue either in its own name
or in the name of Deposit Guaranty Corp. or in the name
of any corporation which previously shall have become the
Company in accordance with the provisions of this Article
any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such
successor Person instead of the Company and subject to
all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities
which such successor Person thereafter shall cause to be
signed and delivered to the Trustee for that purpose.
All of the Securities of a particular series so issued
shall in all respects have the same legal rank and
benefit under this Indenture as the Securities of such
with series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the
execution hereof.
Nothing contained in this Indenture or in any
of the Securities shall prevent the Company from merging
into itself any other Person or acquiring by purchase or
otherwise all or any part of the property of any other
Person, provided that, immediately after such merger or
acquisition, the Company shall not be in default in the
performance or observance of any of the terms, covenants
and conditions of this Indenture to be kept or performed
by it.
Section 8.3. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to Sections 6.1 and 6.3,
may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, transfer, conveyance
or lease and any such assumption complies with the
provisions of this Article.
ARTICLE IX
Supplemental Indentures
Section 9.1. Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the
Company, 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 and the assumption by any
such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the
Company for the benefit of the Holders of all
or any series of Securities (and if such
covenants are to be for the benefit of less
than all series of Securities, stating that
such covenants are expressly being included
solely for the benefit of such series) or to
surrender any right or power herein conferred
upon the Company; or
(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 in respect of
one or more series of Securities, provided that
any such addition, change or elimination (i)
shall neither (A) apply to any Security of any
series 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; or
(7) to establish the form or terms of
Securities of any series as permitted by
Sections 2.1 and 3.1; or
(8) to evidence and provide for the
acceptance of appointment hereunder by a
successor Trustee with respect to the
Securities of one or more series and to 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, 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 of Securities of
any series in any material respect.
Section 9.2. Supplemental Indentures with
Consent of Holders.
With the consent of the Holders of not less
than a majority in principal amount of the Outstanding
Securities of all series affected by such supplemental
indenture (voting as a single class), by Act of said
Holders delivered to the Company, and the Trustee, the
Company, 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 of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of
each such series 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 instalment of principal of
or interest on, any Security, or reduce the
principal amount thereof or the rate of
interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount
Security that would be due and payable upon a
declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, 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, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any
series, 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 10.08, 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
10.08, or the deletion of this proviso, in
accordance with the requirements of Sections
6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
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 9.3. 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 the
trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) 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 9.4. 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 9.5. Conformity with Trust Indenture.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act.
Section 9.6. Reference in Securities to
Supplemental Indentures.
Securities of any series 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 shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of
such series.
ARTICLE X
Covenants
Section 10.1. Payment of Principal, Premium
and Interest.
The Company covenants and agrees for the
benefit of each series of Securities that it will duly
and punctually pay or cause to be paid the principal of
and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and
this Indenture. Interest on Securities shall be payable
without presentment of such Securities, and only to the
registered Holders thereof determined as provided in
Section 3.7. The Company shall have the right to require
a Holder, in connection with the payment of the principal
of and any premium and interest on a Security, to present
at the office or agency of the Company at which such
payment is made a certificate, in such form as the
Company may from time to time prescribe, to enable the
Company to determine its duties and liabilities with
respect to any taxes, assessments or governmental charges
which it may be required to deduct or withhold therefrom
under any present or future law of the United States of
America or of any State, County, Municipality or taxing
or withholding authority therein, and the Company shall
be entitled to determine its duties and liabilities with
respect to such deduction or withholding on the basis of
information contained in such certificate or, if no such
certificate shall be so presented, on the basis of any
presumption created by any such law, and shall be
entitled to act in accordance with such determination.
Section 10.2. Maintenance of Office or Agency.
So long as any Securities remain Outstanding,
the Company will maintain in each Place of Payment for
any series of Securities an office or agency where
Securities of that series may be presented or surrendered
for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in
respect of the Securities of that series 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 of one or more series 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
Securities of any series 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.
Section 10.3. Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Article VI, a Trustee, so that
there shall at all times be a Trustee hereunder.
Section 10.4. Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of or
any premium or interest on any of the Securities of that
series, 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 for any series of Securities, it will,
prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture
Act, 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 for
any series of Securities 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 (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii)
during the continuance of any default by the Company (or
any other obligor upon the Securities of that series) in
the making of any payment in respect of the Securities of
that series, 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 of that series.
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 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, in trust for
the payment of the principal of or any premium or
interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company 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 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.
Section 10.5. Statement by Officers as to Default.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officers' Certificate
(which need not comply with Section 1.2), stating whether
or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance
of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have
knowledge.
Section 10.6. Existence.
Subject to Article VIII, the Company will do or
cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights
(charter and statutory) and franchises to carry on its
business; provided, however, that nothing in this Section
10.6 shall prevent (i) any consolidation or merger of the
Company, or any conveyance, transfer or lease of its
property and assets substantially as an entirety,
permitted by Article VIII, or (ii) the liquidation or
dissolution of the Company after such conveyance or
transfer of its property and assets substantially as an
entirety permitted by Article VIII.
Section 10.7. Limitation on Disposition of Voting
Stock of, and Merger or Sale of Assets
by, Principal Subsidiaries.
So long as any of the Securities shall be
outstanding, but subject to the provisions of Article
VIII:
(a) The Company will not, and will not
permit any Subsidiary to, issue, sell, transfer,
assign, pledge or otherwise dispose of any shares of
Voting Stock of any class of any Principal
Subsidiary or any securities convertible or
exchangeable into or options, warrants or rights to
subscribe for or purchase shares of Voting Stock of
any class of such Principal Subsidiary, unless,
after giving effect to such transaction and to
shares issuable upon conversion or exchange of
outstanding securities convertible or exchangeable
into such Voting Stock or upon the exercise of
options, warrants or rights (including such
securities, if any, which may be the subject of such
transaction), at least 80% of the outstanding shares
of Voting Stock of each class of such Principal
Subsidiary shall be owned at that time directly or
indirectly by the Company, free of any lien; and
(b) The Company will not permit any
Principal Subsidiary to merge or consolidate or
convey or transfer all or substantially all of its
assets, unless at least 80% of the outstanding
shares of Voting Stock of each class (after giving
effect to such transaction and to shares issuable
upon conversion or exchange of outstanding
securities convertible or exchangeable into Voting
Stock or upon the exercise of options, warrants or
rights, including such securities, if any, which may
be issued in such transaction) of the surviving
corporation in the case of merger or consolidation
or of the transferee corporation in the case of a
conveyance or transfer, shall be owned at that time
directly or indirectly by the Company.
Notwithstanding the foregoing, any such
issuance, sale or disposition of shares or securities, or
any such merger or consolidation or conveyance or
transfer of assets shall not be prohibited if required
(a) by any law, regulation or order of any court or
governmental authority of competent jurisdiction or (b)
as a condition imposed by any law, regulation or order of
any court or governmental authority of competent
jurisdiction to the acquisition by the Company, directly
or indirectly, through purchase of stock or assets,
merger, consolidation or otherwise, of any other
corporation or entity, if, after giving effect to such
disposition and acquisition, (i) the Company would own,
directly or indirectly, more than 80% of the Voting Stock
of such other corporation or entity, and (ii) the
Consolidated Banking Assets of the Company would be at
least equal to the Consolidated Banking Assets of the
Company prior to such transaction. For purposes of this
Section 10.7, "Consolidated Banking Assets" means all
assets owned directly or indirectly by a Bank Subsidiary
and reflected on the Company's consolidated statement of
condition prepared in accordance with generally accepted
accounting principles.
Section 10.8. Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth
in Section 10.7 with respect to the Securities of any
series if before the time for such compliance the Holders
of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such
instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force
and effect.
ARTICLE XI
Redemption of Securities
Section 11.1. Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities
of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of
less than all the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
Section 11.3. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series
are to be redeemed (unless all of the Securities of such
series and of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions
(equal to the minimum authorized denomination for
Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum
authorized denomination for Securities of that series.
If less than all of the Securities of such series and of
a specified tenor are to be redeemed, the particular
Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance
with the preceding sentence.
The Trustee shall promptly notify the Company
in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
Any selection of Securities by the Trustee
under this Section and any related notice to the Company
to be given by the Trustee under this Section may be made
or given by the Security Registrar on behalf of the
Trustee.
Section 11.4. Notice of Redemption.
Notice of redemption shall be given by first-
class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest,
if any,
(3) if less than all the Outstanding
Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption
Price and accrued interest, if any, will become due and
payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on
and after said date,
(5) the place or places where such Securities
are to be surrendered for payment of the Redemption Price
and accrued interest, if any, and
(6) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee
in the name and at the expense of the Company and shall
be irrevocable.
Section 11.5. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.4) an amount
of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6. Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date
(unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the
principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. Securities Redeemed in Part.
Any Security which is to be redeemed only in
part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Security Registrar so
requires, due endorsement by, or 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), and the
Company shall execute, and the Security Registrar shall
authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE XII
Sinking Funds
Section 12.1. Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms
of Securities of such series.
Section 12.2. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding
Securities of a series (other than any previously called
for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the
election of the Company pursuant to the terms of such
Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or
any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not
been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee or
the Security Registrar at the Redemption Price specified
in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 12.3. Redemption of Securities for Sinking Fund.
Not less than 90 days prior to each sinking
fund payment date for any series of Securities, the
Company will deliver to the Trustee and the Security
Registrar an Officers' Certificate specifying the amount
of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that
series pursuant to Section 12.2 and the basis for such
credit and will also deliver to the Security Registrar
any Securities to be so delivered. Not less than 60 days
before each such sinking fund payment date the Trustee or
the Security Registrar shall select the Securities to be
redeemed upon such sinking fund payment date in the
manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
11.4. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in
the manner stated in Sections 11.5, 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1. Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance.
If pursuant to Section 3.1 provision is made
for either or both of (a) defeasance of the Securities of
a series under Section 13.2 or (b) covenant defeasance of
the Securities of a series under Section 13.3, then the
provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article
XIII, shall be applicable to the Securities of such
series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities
of such series, elect to have either Section 13.2 (if
applicable) or Section 13.3 (if applicable) be applied to
the Outstanding Securities of such series upon compliance
with the conditions set forth below in this Article XIII.
Section 13.2. Defeasance and Discharge.
Upon the Company's exercise of the above option
applicable to this Section, the Company shall be deemed
to have been discharged from its obligations with respect
to the Outstanding Securities of such series on and after
the date the conditions precedent set forth below are
satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments
acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding
Securities of such series to receive, solely from the
trust fund described in Section 13.5 as more fully set
forth in such Section, payments of the principal of (and
premium, if any) and interest on such Securities when
such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 3.4, 3.5, 3.6,
10.2 and 10.4 and such obligations as shall be ancillary
thereto, (C) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Trustee
hereunder and (D) this Article XIII. Subject to
compliance with this Article XIII, the Company may
exercise its option under this Section 13.2
notwithstanding the prior exercise of its option under
Section 13.3 with respect to the Securities of such
series. Following a defeasance, payment of the
Securities of such series may not be accelerated because
of an Event of Default.
Section 13.3. Covenant Defeasance.
Upon the Company's exercise of the above option
applicable to this Section and after the date the
conditions set forth below are satisfied, the Company
shall be released from its obligations under Section 10.7
(and any covenant applicable to such Securities that are
determined pursuant to Section 3.1 to be subject to this
provision), and the occurrence of an event specified in
Section 5.1(d) (with respect to Section 10.7 and any
other Section applicable to such Securities that are
determined pursuant to Section 3.1 to be subject to this
provision) shall not be deemed to be an Event of Default
with respect to the Outstanding Securities of such series
(hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may
omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in
any such Section 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 such Securities shall be
unaffected thereby. Following a covenant defeasance,
payment of the Securities of such series may not be
accelerated because of an Event of Default specified in
Section 5.1(e) or Section 5.1(f) or by reference to such
Sections specified above in this Section 13.3
Section 13.4. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions precedent
to application of either Section 13.2 or Section 13.3 to
the Outstanding Securities of such series:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of
Section 6.9 who shall agree to comply with the
provisions of this Article XIII 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 such Securities, (A) money in an amount,
or (B) U.S. Government Obligations which 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, without
reinvestment, in the opinion of a nationally
recognized firm of independent certified 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 other qualifying trustee) to pay and discharge,
the principal of (and premium, if any) and interest
on the Outstanding Securities of such series on the
Maturity of such principal, premium, if any, or
interest and any mandatory sinking fund payments or
analogous payments applicable to the Outstanding
Securities of such series on the due dates thereof.
Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates
in accordance with Article XI, which shall be given
effect in applying the foregoing. For this purpose,
"U.S. Government Obligations" means securities that
are (x) direct obligations of the United States of
America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency
or instrumentality of 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, are not
callable or redeemable at the option of the issuer
thereof, and shall also include a depository 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 such U.S. Government Obligation
or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such
custodian for the account of the holder of such
depository receipt, 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 depository receipt from any amount
received by the custodian in respect of the U.S.
Government Obligation or the specific payment of
principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with
notice or lapse of time or both would become an
Event of Default with respect to the Securities of
such series shall have occurred and be continuing
(A) on the date of such deposit or (B) insofar as
subsections 5.1(e) and (f) are concerned, at any
time during the period ending on the 91st day after
the date of such deposit or, if longer, ending on
the day following the expiration of the longest
preference period applicable to the Company in
respect of such deposit (it being understood that
the condition in this Clause (B) shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance
shall not (A) cause the Trustee for the Securities
of such series to have a conflicting interest as
defined in Section 6.8 or for purposes of the Trust
Indenture Act with respect to any securities of the
Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance
shall not result in a breach or violation of, or
constitute a default under, this Indenture or any
other agreement or instrument to which the Company
is a party or by which it is bound.
(5) Such defeasance or covenant defeasance
shall not cause any Securities of such series then
listed on any registered national securities
exchange under the Securities Exchange Act of 1934,
as amended, to be delisted.
(6) In the case of an election under Section
13.2, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been
published by, the Internal Revenue Service a ruling,
or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax
law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders
of the Outstanding Securities of such series will
not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the
same amounts, in the same manner and at the same
times as would have been the case if such defeasance
had not occurred.
(7) In the case of an election under Section
13.3, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the
same times as would have been the case if such
covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance
shall be effected in compliance with any additional
terms, conditions or limitations which may be
imposed on the Company in connection therewith
pursuant to Section 3.1.
(9) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
provided for relating to either the defeasance under
Section 13.2 or the covenant defeasance under
Section 13.3 (as the case may be) have been complied
with.
Section 13.5. 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 10.4, all money and U.S. Government
Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 13.5, the
"Trustee") pursuant to Section 13.4 in respect of the
Outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but
not including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest,
but such money 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 money or U.S. Government Obligations
deposited pursuant to Section 13.4 or the principal and
interest received in respect thereof.
Anything herein to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in
Section 13.4 which, 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 which
would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
Section 13.6. Reinstatement.
If the Trustee or the Paying Agent is unable to
apply any money in accordance with Section 13.5 by reason
of any order or judgment or any court or governmental
authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under
the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to
this Article XIII until such time as the Trustee or
Paying Agent is permitted to apply all such money in
accordance with Section 13.5; provided, however, that if
the Company makes any payment of principal of (and
premium, if any) or interest on any such Security
following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money
held by the Trustee or the Paying Agent.
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.
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.
DEPOSIT GUARANTY CORP.
By
Name:
Title:
Attest:
_____________________
Name:
Title:
SUNTRUST BANK, ATLANTA
By
Name:
Title:
By
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1995, before me
personally came , to me known, who,
being by me duly sworn, did depose and say that he is
of Deposit Guaranty Corp., one of the
corporations described in and which executed the
foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is
such corporate seal; that it was affixed by authority of
the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of _________, 1995, before me
personally came _______________ and ________________, to
me known, who, being by me duly sworn, did depose and say
that they are ___________ and _____________ of SunTrust
Bank, Atlanta respectively, one of the corporations
described in and which executed the foregoing instrument;
that they know the seal of said corporation; that the
seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of
Directors of said corporation, and that they signed their
names thereto by like authority.
DEPOSIT GUARANTY CORP.
TO
SUNTRUST BANK, ATLANTA
Trustee
__________
SUBORDINATED DEBT SECURITIES
_________
INDENTURE
Dated as of __________, 1995
_________
Deposit Guaranty Corp.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
SECTION 310(a)(1) . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 6.8
6.10
SECTION 311(a) . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . 6.13
SECTION 312(a) . . . . . . . . . . . . . 7.1
7.2(a)
(b) . . . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . . . 7.2(c)
SECTION 313(a). . . . . . . . . . . . . . 7.3(a)
(b) . . . . . . . . . . . . . . 7.3(a)
(c) . . . . . . . . . . . . . . 7.3(a)
(d) . . . . . . . . . . . . . . 7.3(b)
SECTION 314(a). . . . . . . . . . . . . . 7.4
(a)(4) . . . . . . . . . . . . . . 1.1
10.5
(b) . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . 1.2
SECTION 315(a). . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . 5.14
SECTION 316(a) . . . . . . . . . . . . . 1.1
(a)(1)(A) . . . . . . . . . . . . . 5.2
5.12
(a)(1)(B) . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . 1.4(c)
SECTION 317(a)(1) . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . 10.4
SECTION 318(a) . . . . . . . . . . . . . 1.7
______________
NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
INDENTURE, dated as of ____________, 1995,
between Deposit Guaranty Corp., a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the "Company"), having its
principal offices at 210 East Capital Street, Jackson,
Mississippi 39205 and SunTrust Bank, Atlanta, a banking
corporation duly organized and existing under the laws of
the State of Georgia, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution
and delivery of this Indenture to provide for the
issuance from time to time of its unsecured subordinated
debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or
more series as in this Indenture provided.
All things necessary to make this Indenture a
valid agreement of the Company, 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 or of series
thereof, as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1. 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, either directly
or by reference therein, have the meanings assigned
to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to then 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; and
(4) 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 1.4.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with such specified Person. For the purposes of this
definition, "control" when used with respect to any
specified Person means the power to direct the management
and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person
authorized by the Trustee pursuant to Section 614 to act
on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee
of that board or any directors or officers of the Company
to whom such board of directors shall have delegated its
authority to act hereunder.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"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 Securities Exchange Act of 1934, 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.
"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" means a
written request or order signed in the name of the
Company by its Chairman of the Board, its Vice Chairman
of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of
the Trustee in Atlanta, Georgia at which at any
particular time its corporate trust business shall be
principally administered.
"corporation" means a corporation, association,
company, joint-stock company or business trust.
"covenant defeasance" has the meaning specified
in Section 14.3.
"Defaulted Interest" has the meaning specified
in Section 3.7.
"defeasance" has the meaning specified in
Section 14.2.
"Depositary" means, with respect to the
Securities of any series issuable or issued in whole or
in part in the form of one or more Global Securities, the
Person designated as Depositary for such series by the
Company pursuant to Section 3.1, which Person shall be a
clearing agency registered under the Exchange Act; and if
at any time there is more than one such Person,
"Depositary", as used with respect to the Securities of
any series, shall mean the Depositary with respect to the
Securities of such series.
"Entitled Person" means any person entitled to
payment pursuant to the terms of Other Financial
Obligations.
"Event of Default" has the meaning specified in
Section 5.1.
"Excess Proceeds" has the meaning specified in
Section 13.15.
"Exchange Act" means the Securities Exchange
Act of 1934 as it may be amended and any successor act
thereto.
"Global Security" means a Security bearing the
legend prescribed in Section 2.4 evidencing all or part
of a series of Securities, authenticated and delivered to
the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a
Security is registered in the Security Register.
"indebtedness for money borrowed", when used
with respect to the Company, means (i) any obligation of,
or any obligation guaranteed by, the Company for the
repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments,
(ii) any deferred payment obligation of, or any such
obligation guaranteed by, the Company for the payment of
the purchase price of property or assets evidenced by a
note or similar instrument, and (iii) any obligation of,
or any such obligation guaranteed by, the Company for the
payment of rent or other amounts under a lease of
property or assets which obligation is required to be
classified and accounted for as a capitalized lease on
the balance sheet of the Company under generally accepted
accounting principles.
"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. The term "Indenture" shall also
include the terms of particular series of Securities
established as contemplated by Section 3.1.
"interest", when used with respect to an
Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect
to any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an instalment 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.
"Officers' Certificate" means a certificate
signed by the Chairman of the Board, a Vice Chairman of
the Board, the President or a Vice President, Chief
Financial Officer or Controller and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
One of the officers signing an Officers' Certificate
given pursuant to Section 10.5 shall be the principal
executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who
shall be acceptable to the Trustee.
"Original Issue Discount Security" means any
Security which provides for an amount less than the
principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Other Financial Obligations" means, unless
otherwise determined with respect to any series of
Securities pursuant to Section 3.1, all obligations to
make payment pursuant to the terms of financial
instruments, such as (i) securities contracts and foreign
currency exchange contracts, (ii) derivative instruments,
such as swap agreements (including interest rate and
foreign exchange rate swap agreements), cap agreements,
floor agreements, collar agreements, interest rate
agreements, foreign exchange rate agreements, options,
commodity futures contracts, commodity options contracts
and (iii) similar financial instruments; provided that,
the term Other Financial Obligations shall not include
(A) obligations on account of Senior Indebtedness and (B)
obligations on account of indebtedness of the Company for
money borrowed ranking pari passu with or subordinate to
the Securities.
"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 cancelled by the
Trustee or delivered to the Trustee for
cancellation;
(ii) Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities which have been paid pursuant
to Section 3.6 or 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; and
(iv) Securities which have been defeased
pursuant to Section 14.2 hereof;
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, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would
be due and payable as of the date of such determination
upon acceleration of the Maturity thereof pursuant to
Section 5.2, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency
units shall be the U.S. dollar equivalent, determined in
the manner provided as contemplated by Section 3.1 on the
date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent on the date
of original issuance of such Security of the amount
determined as provided in (i) above) of such Security,
and (iii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the
Company 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 so
to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company 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, joint venture, trust, unincorporated
organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to
the Securities of any series, means the place or places
where the principal of and any premium and interest on
the Securities of that series are payable as specified as
contemplated by Section 3.1.
"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 3.6 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.
"Redemption Date", when used with respect to
any Security to be redeemed, means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to
any Security to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable
on any Interest Payment Date on the Securities of any
series means the date specified for that purpose as
contemplated by Section 3.1.
"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 knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the
first recital of this Indenture and more particularly
means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar"
have the respective meanings specified in Section 3.5.
"Senior Indebtedness" means, unless otherwise
determined with respect to any series of Securities
pursuant to Section 3.1, the principal of, and premium,
if any, and interest on (a) all indebtedness of the
Company for money borrowed (including indebtedness of
others guaranteed by the Company) other than the
Securities, whether outstanding on the date of execution
of this Indenture or thereafter created, assumed or
incurred, except (i) such indebtedness as is by its terms
expressly stated to be junior in right of payment to the
Securities, and (ii) such indebtedness as is by its terms
expressly stated to rank pari passu in right of payment
with the Securities, and (b) any deferrals, renewals or
extensions of any such Senior Indebtedness.
"Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.7.
"Stated Maturity", when used with respect to
any Security or any installment of principal thereof or
interest thereon, means the date specified in such
Security as the fixed date on which the principal of such
Security or such installment of principal or interest is
due and payable.
"Subsidiary" means a corporation more than 50%
of the outstanding Voting Stock of which is owned,
directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"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, "Trustee" as used with
respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"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. Government Obligations" has the meaning
specified in Section 14.4(1).
"Vice President", when used with respect to the
Company or the Trustee, means any vice president (but
shall not include any assistant vice president), whether
or not designated by a number or a word or words added
before or after the title "vice president".
"Voting Stock" means stock which ordinarily has
voting power for the election of at least a majority of
the board 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.
"Yield to Maturity", when used with respect to
any Original Issue Discount Security, shall mean the
yield to maturity, if any, set forth in the prospectus
supplement relating thereto, which shall be equal to the
yield to maturity, if any, set forth on the face of such
Security.
Section 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company 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 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 shall include
(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, he has made such examination or
investigation as is necessary to enable him 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 1.3. 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 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 his 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
stating that the information with respect to such factual
matters is in the possession of the Company, 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.
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 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other action
provided 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. 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 6.1) conclusive in favor of the
Trustee and the Company, if made in the manner provided
in this Section.
Without limiting the generality of the
foregoing, a Holder, including a Depositary that is a
Holder of a Global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted in
this Indenture to be made, given or taken by Holders, and
a Depositary that is a Holder of a Global Security may
provide its proxy or proxies to the beneficial owners of
interest in any such Global Security.
(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 the execution thereof. Where
such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
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 may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the
record date for the purpose of determining the Holders of
Securities of any series 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 Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of
Securities of such series 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 most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation
or vote, as the case may be. With regard to any record
date for action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities of
such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of Securities shall be
proved by the Security Register.
(e) 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 or the
Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) 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 1.5. Notices, Etc., to Trustee and Company.
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 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, 58 Edgewood Avenue, Annex, 4th Floor,
P.O. Box 4625, Atlanta, Georgia, 30303, Attention:
Bryan Echols, or
(2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it at
the address of its principal office in Jackson,
Mississippi specified in the first paragraph of this
instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6. 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 his 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.
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 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act
that is required under such Act to be a part of and
govern this Indenture, 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 1.8. 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.
Section 1.9. Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns,
whether so expressed or not.
Section 1.10. Separability Clause.
In case any provision in this Indenture or in
the Securities 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,
express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, the
holders of Senior Indebtedness, the Holders and, subject
to Section 907, Entitled Persons in respect of Other
Financial Obligations, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and the Securities shall be
governed by and construed in accordance with the laws of
the State of New York.
Section 1.13. Legal Holidays.
In any case where any Interest Payment Date,
Redemption 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 (other than a provision of the
Securities of any series which specifically states that
such provision shall apply in lieu of this Section))
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 Redemption Date,
or at the Stated Maturity, provided that no interest
shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE II
Security Forms
Section 2.1. Forms Generally.
The Securities of each series shall be in
substantially the form set forth in this Article, or in
such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures
supplemental hereto, in each case 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, consistently herewith,
be determined by the officers of the Company executing
such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is
established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and
delivery of such Securities.
The definitive Securities shall be printed,
lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the
officers of the Company executing such Securities, as
evidenced by their execution of such Securities.
Section 2.2. Form of Face of Security.
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT,
NOR IS IT ANY OTHER OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY
OF THE COMPANY AND IS NOT INSURED BY THE SAVINGS ASSOCIATION
INSURANCE FUND OR THE BANK INSURANCE FUND OF THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER FEDERAL
AGENCY.
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
DEPOSIT GUARANTY CORP.
___% Subordinated Notes Due _________ __, ____
No........... $__________
Deposit Guaranty Corp., a corporation duly
organized and existing under the laws of the State of
Mississippi (herein called the "Company", which term
includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby
promises to pay to ............................., or
registered assigns, the principal sum
of..................... [if applicable insert -- Dollars]
on ............ [if the Security is to bear interest
prior to Maturity, insert--, and to pay interest thereon
from ........... .. or from the most recent Interest
Payment Date to which interest has been paid or duly
provided for, semi-annually in arrears on............
and............ in each year, commencing .........., at
the rate of ...% per annum, until the principal hereof is
paid or made available for payment (if applicable, insert
--, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of .... % per
annum on any overdue principal and premium and on any
overdue installment of interest]. 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 (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record
Date for such interest, which shall be the ....... or
....... (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor
Securities) 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 Holders of Securities of this series 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 of this series may be
listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture] .
If the Security is not to bear interest prior
to Maturity, insert -- The principal of this Security
shall not bear interest except in the case of a default
in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at
the rate of ....% per annum (to the extent that the
payment of such interest shall be legally enforceable),
which shall accrue from the date of such default in
payment to the date payment of such principal has been
made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest
on any overdue principal that is not so paid on demand
shall bear interest at the rate of .... % per annum (to
the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date on
which principal became overdue to the date payment of
such interest has been made or duly provided for, and
such interest shall also be payable on demand.]
Payment of the principal of (and premium, if
any) and [if applicable, insert -- any such] interest on
this Security will be made at the office or agency of the
Company maintained for that purpose in ............, in
such coin or currency of [the United States of America]
[insert other currency, if applicable] as at the time of
payment is legal tender for payment of public and private
debts [if applicable, insert --; 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].
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 or on behalf of 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:
DEPOSIT GUARANTY CORP.
BY.....................
Attest:
........................
Section 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue
of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _________, 1995
(herein called the "Indenture"), between the Company and
SunTrust Bank, Atlanta, 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 Trustee, the holders of Senior Indebtedness and the
Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated
on the face hereof [, limited in aggregate principal
amount to $...........].
[If applicable, insert -- The Securities of
this series are subject to redemption upon not less than
30 days' notice by first-class mail, [if applicable,
insert -- (1) on ............ in any year commencing with
the year..... and ending with the year .... through
operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount,
and (2)] at any time [on or after ..............., 19..],
as a whole or in part, at the election of the Company, at
the following Redemption Prices (expressed as percentages
of the principal amount): If redeemed [on or
before............... , _%, and if redeemed] during the
12-month period beginning ............... of the years
indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ....% of
the principal amount, together in the case of any such
redemption [if applicable, insert -- (whether through
operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date; but interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in
the Indenture.]
[If applicable, insert -- The Securities of
this series are subject to redemption upon not less than
30 days' notice by first-class mail, (1) on
............... in any year commencing with the year ....
and ending with the year .... through operation of the
sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set
forth in the table below, and (2) at any time [on or
after ..........], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12-
month period beginning ............... of the years
indicated,
Redemption Price
For Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ....% of
the principal amount, together in the case of any such
redemption (whether through operation of the sinking fund
or otherwise) with accrued interest to the Redemption
Date; but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may
not, prior to ............., redeem any Securities of
this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of,
any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to
the Company (calculated in accordance with generally
accepted financial practice) of less than ....% per
annum.]
[The sinking fund for this series provides for
the redemption on .............. in each year beginning
with the year .... and ending with the year .... of [not
less than $......... ("mandatory sinking fund") and not
more than] $......... aggregate principal amount of
Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments
otherwise required to be made [if applicable, insert --
in the inverse order in which they become due].]
[If the Security is subject to redemption
insert -- In the event of redemption of this Security in
part only, a new Security or Securities of this series
and of like tenor for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If applicable, insert -- This Security is not
subject to redemption prior to maturity.]
[If applicable, insert -- The Indenture
contains provisions for defeasance at any time of [(a)]
[the entire indebtedness evidenced by this Security] [and
(b)] (certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set
forth therein, which provisions apply to this Security.]
[If applicable, insert -- The indebtedness
evidenced by the Securities of this series is, to the
extent provided in the Indenture, subordinated and junior
to the prior payment in full of all Senior Indebtedness,
as defined in the Indenture, and this Security is issued
subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the
same, agrees that each holder of Senior Indebtedness,
whether created or acquired before or after the issuance
of the Securities of this series, shall be deemed
conclusively to have relied on such provisions in
acquiring and continuing to hold, or in continuing to
hold, such Senior Indebtedness. The Indenture also
provides that if, upon the occurrence of certain events
of bankruptcy or insolvency relating to the Company,
there remains, after giving effect to such subordination
provisions, any amount of cash, property or securities
available for payment or distribution in respect of
Securities of this series (as defined in the Indenture,
"Excess Proceeds"), and if, at such time, any Entitled
Person (as defined in the Indenture) has not received
payment in full of all amounts due or to become due on or
in respect of Other Financial Obligations (as defined in
the Indenture), then such Excess Proceeds shall first be
applied to pay or provide for the payment in full of such
Other Financial Obligations before any payment or
distribution may be made in respect of Securities of this
series. This Security is also issued subject to the
provisions of the Indenture regarding payments to
Entitled Persons in respect of other Financial
Obligations. Each Holder of this Security, by accepting
the same, agrees to be bound by the provisions of the
Indenture described herein and authorizes and directs the
Trustee to take such action on his behalf as may be
necessary or appropriate to acknowledge or effectuate the
subordination of this Security and payment of Excess
Proceeds as provided in the Indenture and appoints the
Trustee his attorney-in-fact for any and all such
purposes.]
The principal of this Security may not be
declared due and payable upon the occurrence of an Event
of Default, except an Event of Default relating to
certain events involving the bankruptcy, insolvency or
reorganization of the Company.
[If the Security is not an Original Issue
Discount Security, insert -- If an Event of Default with
respect to Securities of this series relating to certain
events involving the bankruptcy, insolvency or
reorganization of the Company shall occur and be
continuing, the principal of the Securities of this
series may be declared due and payable in the manner and
with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount
Security, insert -- If an Event of Default with respect
to Securities of this series relating to certain events
involving the bankruptcy, insolvency or reorganization of
the Company shall occur and be continuing, an amount of
principal of the Securities of this series may be
declared due and payable in the manner and with the
effect provided in the Indenture. Such amount shall be
equal to -- insert formula for determining the amount.
Upon payment [if applicable insert -- (i)]of the amount
of principal so declared due and payable and (if
applicable, insert -(ii) of interest on any overdue
principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally
enforceable)], all of the Company's obligations in
respect of the payment of the principal of and interest,
if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company
and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of the
Holders of not less than a majority in principal amount
of the Securities at the time Outstanding of all series
to be affected (voting as a single class). The Indenture
also contains provisions permitting the Holders of
specified percentages in principal amount of the
Securities of each series at the time outstanding, on
behalf of the Holders of all Securities of such series,
to waive 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 herefor or in lieu
hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture 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 registerable 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 of this series and of like tenor, of
authorized denominations and for the same aggregate
principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only
in registered form without coupons in denominations of
$_______ and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations
therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of
Securities of this series 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 Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned
to them in the Indenture.
Section 2.4. Form of Legend for Global Securities.
Any Global Security authenticated and delivered
hereunder shall bear a legend in substantially the
following form:
"This Security is a Global Security within
the meaning of the Indenture hereinafter
referred to and is registered in the name of a
Depositary or a nominee thereof. This Security
may not be transferred to, or registered or
exchanged for Securities registered in the name
of, any Person other than the Depositary or a
nominee thereof and no such transfer may be
registered, except in the limited circumstances
described in 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 2.5. Form of Trustee's Certificate of
Authentication.
The Trustee's certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
SUNTRUST BANK, ATLANTA
,
As Trustee
By
Authorized Signatory
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in or pursuant to a
Board Resolution and, subject to Section 3.3, set forth,
or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities
of any series:
(1) the title of the Securities of the
series (which shall distinguish the Securities
of the series from Securities of any other
series);
(2) any limit upon the aggregate
principal amount of the Securities of the
series which may be authenticated and delivered
under this Indenture (except for Securities
authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except
for any Securities which, pursuant to Section
3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a
Security of the series shall be payable, if
other than 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;
(4) the date or dates on which the
principal of the Securities of the series is
payable;
(5) the rate or rates at which the
Securities of the series shall bear interest,
if any, the date or dates from which such
interest shall accrue, the Interest Payment
Dates on which any such interest shall be
payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) the place or places where the
principal of and any premium and interest on
Securities of the series shall be payable;
(7) the period or periods within which,
the price or prices at which and the terms and
conditions upon which Securities of the series
may be redeemed, in whole or in part, at the
option of the Company;
(8) the obligation, if any, of the
Company to redeem or purchase Securities of the
series pursuant to any sinking fund or
analogous provisions or at the option of a
Holder thereof and the period or periods within
which, the price or prices at which and the
terms and conditions upon which Securities of
the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000
and any integral multiple thereof, the
denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency
units in which payment of the principal of and
any premium and interest on any Securities of
the series shall be payable if other than the
currency of the United States of America and
the manner of determining the equivalent
thereof in the currency of the United States of
America for purposes of the definition of
"Outstanding" in Section 1.1;
(11) if the amount of payments of
principal of or any premium or interest on any
Securities of the series may be determined with
reference to an index or formula, the manner in
which such amounts shall be determined;
(12) if the principal of or any premium or
interest on any Securities of the series is to
be payable, at the election of the Company or a
Holder thereof, in one or more currencies or
currency units other than that or those in
which the Securities are stated to be payable,
the currency, currencies or currency units in
which payment of the principal of and any
premium and interest on Securities of such
series as to which such election is made shall
be payable, and the periods within which and
the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount
thereof, the portion of the principal amount of
Securities of the series which shall be payable
upon declaration of acceleration of the
Maturity thereof pursuant to Section 5.2;
(14) the application, if any, of either or
both of Section 14.2 and Section 14.3 to the
Securities of the series;
(15) whether the Securities of the series
shall be issuable in whole or in part in the
form of one or more Global Securities and, in
such case, the Depositary or Depositaries for
such Global Security or Global Securities and
any circumstances other than those set forth in
Section 3.5 in which any such Global Security
may be transferred to, and registered and
exchanged for Securities registered in the name
of, a Person other than the Depositary for such
Global Security or a nominee thereof and in
which any such transfer may be registered;
(16) if other than as specified in Section
5.1, the Events of Default applicable with
respect to the Securities of the series;
(17) if other than as specified in Section
5.2, the Events of Default the occurrence of
which would permit the declaration of the
acceleration of Maturity pursuant to Section
5.2;
(18) any other covenant or warranty
included for the benefit of Securities of the
series in addition to (and not inconsistent
with) those included in this Indenture for the
benefit of Securities of all series, or any
other covenant or warranty included for the
benefit of Securities of the series in lieu of
any covenant or warranty included in this
Indenture for the benefit of Securities of all
series, or any provision that any covenant or
warranty included in this Indenture for the
benefit of Securities of all series shall not
be for the benefit of Securities of such
series, or any combination of such covenants,
warranties or provisions;
(19) if other than the subordination
provisions in Article XIII, the subordination
provisions that shall apply to the Securities
of the series, including a different definition
of the terms "Senior Indebtedness" "Entitled
Person" or "Other Financial Obligations;" and
(20) any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture, except as
permitted by Section 9.1(5)).
All Securities of any one series shall be
substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to
Section 3.3) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above
or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at one
time and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such
series.
Unless otherwise provided with respect to the
Securities of any series, at the option of the Company,
interest on the Securities of any series that bears
interest may be paid by mailing a check to the address of
the person entitled thereto as such address shall appear
in the Security Register.
If any of the terms of a series are established
by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate setting forth the terms of
such series.
Section 3.2 Denominations.
The Securities of each series shall be issuable
in registered form without coupons in such denominations
as shall be specified as contemplated by Section 3.1. In
the absence of any such provisions with respect to the
Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of
the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon
attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company shall bind the Company,
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.
At any time and from time to time after the
execution and delivery of this Indenture, the Company may
deliver Securities of any series executed by the Company
to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the
Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of
the series have been established in or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and
3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall
be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has
been established by or pursuant to Board
Resolution as permitted by Section 2.1, that
such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have
been established by or pursuant to Board
Resolution as permitted by Section 3.1, that
such terms have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when
authenticated and delivered by the Trustee and
issued by the Company in the manner and subject
to any conditions specified in such Opinion of
Counsel, will constitute valid and legally
binding obligations of the Company enforceable
in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights and to general equity
principles.
If such form or terms have been so established, the
Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1
and of the preceding paragraph, if all Securities of a
series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or
the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior
to the time of authentication of each Security of such
series if such documents are delivered at or prior to the
authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its
authentication.
No Security 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 of an authorized signatory, and such
certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
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 3.9, for all purposes of this
Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive
Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate
insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine,
as evidenced by their execution of such Securities.
If temporary Securities of any series are
issued, the Company will cause definitive Securities of
that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series
at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall
execute and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of
the same series, of any authorized denominations and of a
like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and
tenor.
Section 3.5 Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the
corporate trust office of SunTrust Bank, Atlanta a
register (the register maintained in such office being
herein sometimes referred to as the "Security Register")
in which, subject to such reasonable regulations as it or
the Security Registrar may prescribe, the Company shall
provide for the registration of Securities and of
transfers of Securities. SunTrust Bank, Atlanta is
hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of
any Security of any series at the office or agency in a
Place of Payment for that series, 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 the same series, of any
authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any
series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of
the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as
the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for
registration of transfer or for exchange 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.
No service charge shall be made for any
registration of transfer or exchange of Securities, but
the Company 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 Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any
series during a period beginning at the opening of
business 15 days before the day of the mailing of a
notice of redemption of Securities of that series
selected for redemption under Section 11.3 and ending at
the close of business on the day of such mailing, or (ii)
to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in
part.
Notwithstanding the foregoing and except as
otherwise specified or contemplated by Section 3.1, no
Global Security shall be exchangeable pursuant to this
Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and no transfer of a Global
Security of any series may be registered to, any Person
other than the Depositary for such Security or its
nominee, unless (1) such Depositary (A) notifies the
Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) ceases to be a
clearing agency registered under the Exchange Act, (2)
the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so
exchangeable and the transfer thereof so registerable, or
(3) there shall have occurred and be continuing an Event
of Default, or an event which with notice or lapse of
time or both would become an Event of Default, with
respect to the Securities evidenced by such Global
Security. Upon the occurrence in respect of any Global
Security of any series of any one or more of the
conditions specified in clause (1), (2) or (3) of the
preceding sentence or such other conditions as may be
specified as contemplated by Section 3.1 for such series,
such Global Security may be exchanged for Securities
registered in the names of, and the transfer of such
Global Security may be registered to, such Persons
(including Persons other than the Depositary with respect
to such series and its nominees) as such Depositary shall
direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon
registration of transfer of, or in exchange for, or in
lieu of, any Global Security shall also be a Global
Security and shall bear the legend specified in Section
2.4 except for any Security authenticated and delivered
in exchange for, or upon registration of transfer of, a
Global Security pursuant to the preceding sentence.
Section 3.6 Mutilated, Destroyed, Lost and
Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by 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
destroyed, lost or stolen Security, a new Security of the
same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
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 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 of any series issued
pursuant to this Section in lieu of any destroyed, lost
or stolen Security shall constitute an original
additional contractual obligation of the Company, 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 of that
series 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 3.7 Payment of Interest; Interest
Rights Preserved.
Except as otherwise provided as contemplated by
Section 3.1 with respect to any series of Securities,
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 of any series
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 shall be paid by the Company, at its election,
either 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 of such series (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
of such series 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 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 10 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 of Securities of such
series at his 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 of
such series (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 of any
series 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 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name 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 3.7) any interest on such Security and for all
other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 3.9 Cancellation.
All Securities surrendered for payment,
redemption, registration of transfer or exchange or for
credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company
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 cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order, subject to
any requirements of law.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated
by Section 3.1 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 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), and the
Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(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 3.6 and (ii) Securities for
whose payment money has theretofore been
deposited in trust or segregated and held in
trust by the Company and thereafter repaid to
the Company or discharged from such trust, as
provided in Section 10.4) 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, or
(iii) are to be called for
redemption within one year under
arrangements satisfactory to the Trustee
for the giving of notice of redemption by
the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for
principal and any premium and interest to the date
of such deposit (in the case of Securities which
have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company; and
(3) 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 to the
Trustee under Section 6.7, the obligations, if any, 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 Section 4.2
and the last paragraph of Section 10.4 shall survive.
Section 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph
of Section 10.4, all money deposited with the Trustee
pursuant to Section 4.1 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 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 money has been deposited with the Trustee. Money
deposited pursuant to Section 4.1 and held in trust
pursuant to this Section shall not be subject to claims
of the holders of Senior Indebtedness or Entitled Persons
in respect of Other Financial Obligations under Article
XIII.
ARTICLE V
Remedies
Section 5.1 Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any particular series, means any
one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by
the provisions of Article XIII or be voluntary or
involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body):
(a) default in the due and punctual
payment of any installment of interest upon any
of the Securities of that series as and when
the same shall become due and payable and
continuance of such default for a period of 30
days; or
(b) default in the due and punctual
payment of the principal of (or premium, if
any, on) any of the Securities of that series
as and when the same shall become due and
payable either at Maturity, by declaration as
authorized by this Indenture, or otherwise; or
(c) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security
of that series; or
(d) failure on the part of the Company duly to
observe or perform any other of the covenants or
agreements on the part of the Company set forth in
the Securities of that series or in this Indenture
(other than those set forth exclusively in the terms
of Securities of any series other than that series,
or those which have been included in this Indenture
for the benefit of Securities of any series other
than that series) continued for a period of 60 days
after there has been given, by registered or
certified mail, to the Company by the Trustee, or to
the Company and the Trustee by the Holders of at
least 25% in principal amount of the Securities of
that series at the time outstanding, a written
notice specifying such failure and requiring the
same to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(e) the entry by a court or a governmental
authority having jurisdiction in the premises of (A)
a decree or order for relief in respect of the
Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other
similar official of the Company or substantially all
of its assets, or ordering the winding up or
liquidation of the affairs of the Company, and the
continuance of any such decree or order for relief
or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(f) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company
in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law,
or the consent to it to the filing of such petition
or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
a sequestrator or other similar official of the
Company or substantially all of its assets, or the
making by the Company of an assignment for the
benefit of creditors, or the admission by the
Company in writing of its inability to pay its debts
generally as they become due, or the taking of
corporate action by the Company in furtherance of
any such action; or
(g) any other Event of Default provided
with respect to Securities of that series.
Section 5.2 Acceleration of Maturity;
Rescission and Annulment.
In case one or more of the Events of Default
specified in Section 5.1(e) or 5.1(f) shall have occurred
and be continuing with respect to any particular series
of Securities, then and in each and every such case,
unless the principal of all of the Securities of that
series shall have already become due and payable, either
the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of that
series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by Holders),
may declare the principal or, in the case of Original
Issue Discount Securities, such amount of principal as
may be provided for in such Securities, of all the
Securities of that series to be due and payable
immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything
in this Indenture or in the Securities of that series
contained to the contrary notwithstanding. This
provision, however, is subject to the condition that if,
at any time after such principal or such amount of
principal, as the case may be, shall have been so
declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company
shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest
upon all Securities of that series and the principal of
(and premium, if any, on) any and all Securities of that
series which shall have become due otherwise than by
acceleration (with interest on overdue installments of
interest (to the extent that payment of such interest is
enforceable under applicable law) and on such principal
(and premium, if any) at the rate of interest prescribed
therefor by such Securities, to the date of such payment
or deposit) and the expenses of the Trustee, including
the reasonable fees of its counsel, and any and all
defaults under this Indenture with respect to the
Securities of the series, other than the nonpayment of
principal of (and premium, if any) and accrued interest
on the Securities of that series which shall have become
due by acceleration shall have been remedied, then and in
every such case the holders of a majority in aggregate
principal amount of the Securities of that series then
outstanding, by written notice to the Company and to the
Trustee, may waive all defaults and rescind and annul
such declaration and its consequences; but no such waiver
or rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to
enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the
Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue
as though no such proceeding had been taken.
Section 5.3 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 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.
If an Event of Default with respect to
Securities of any series 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 of such series 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 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to
the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be
authorized 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 6.7.
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, the Trustee may vote on behalf of the Holders
for the election of a trustee in bankruptcy or similar
official and may be a member of a creditors' or other
similar committee.
Section 5.5 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, be for
the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
Subject to Article XIII, 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 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 6.7; and
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.
Section 5.7 Limitation on Suits.
No Holder of any Security of any series 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 with respect to the Securities
of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities
of that series 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 reasonable indemnity 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 of that series;
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 5.8 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 3.7) any interest on such Security on the
Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date)
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 5.9 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 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
3.6, 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.
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. 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 of any series 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 of such
series, provided that
(1) such direction shall not be in
conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section
6.1, the Trustee shall have the right to
decline to follow any such direction if the
Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine
that the proceeding so directed would involve
the Trustee in personal liability.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in
principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities
of such series waive any past default hereunder with
respect to such series and its consequences, except a
default
(1) in the payment of the principal of or
any premium or interest on any Security of such
series, or
(2) in respect of a covenant or provision
hereof which under Article IX cannot be
modified or amended without the consent of the
Holder of each Outstanding Security of such
series affected.
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 Trustee.
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had
been enacted.
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall
be subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such
default known to the Trustee as and to the extent
provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character
specified in Section 5.1(d) with respect to Securities of
such series, 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
Securities of such series.
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(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 mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order
and any resolution of the Board of Directors
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 other evidence be herein specifically
prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate,
except that in the case of any such Officers'
Certificate which by any provision hereof is
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not it
conforms to the requirements of the Indenture;
(d) the Trustee may consult with counsel
and the 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, except that in the case of any such
Opinion of Counsel which by any provision
hereof is specifically required to be furnished
to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether
or not it conforms to the requirements of the
Indenture;
(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 reasonable
security or indemnity against the costs,
expenses and liabilities which might be
incurred by it in compliance with such request
or direction;
(f) 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 be entitled to examine
the books, records and premises of the Company,
personally or by agent or attorney; 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 6.4 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, 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. The
Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any
Paying Agent, any Security Registrar or any other agent
of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with
the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.6 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.
Section 6.7 Compensation and Reimbursement.
The Company agrees
(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 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 the expenses and disbursements
of its agents and counsel), except any such
expense, disbursement or advance as may be
attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee and its
directors, officers, agents and employees for,
and to hold each of them harmless against, any
loss, liability or expense incurred without
negligence or bad faith on its or their
respective parts, as the case may be, arising
out of or in connection with the acceptance or
administration of the trust or trusts
hereunder, including the costs and expenses of
defending against any claim or liability in
connection with the exercise or performance of
any of the powers or duties of the Trustee
hereunder.
As security for the performance of the
obligations of the Company under this Section the Trustee
shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of
principal of, premium, if any, or interest, if any, on
particular Securities.
The provisions of this Section shall survive
the termination of the Indenture or the resignation or
removal of the Trustee.
Section 6.8 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 6.9 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 and its
Corporate Trust Office in the United States or any State
or Territory thereof or the District of Columbia. 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 with
respect to the Securities of one or more series by giving
written notice thereof to the Company. 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
with respect to the Securities of such series.
(c) The Trustee may be removed at any time
with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 6.8 after written request therefor by the
Company or by any 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 6.9 and shall fail to resign after
written request therefor by the Company 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 with respect to all
Securities, 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 himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor
Trustee or Trustees.
(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, with respect to
the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect
to the Securities of any particular series) 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 with respect to the Securities of any
series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding
Securities of such series delivered to the Company 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 with respect to the
Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series 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 of such series for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the
manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee with respect to
the Securities of such series and the address of its
Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company 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 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 with respect to the Securities of one
or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the
Securities of one or more series 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 and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3)
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 Trustees 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 with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company 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
hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor
Trustee, the Company 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 Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under
this Article.
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.
If and when the Trustee shall be or become a
creditor of the Company (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 (or any such
other obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents (which may be an Affiliate of the Company) with
respect to one or more series of Securities which shall
be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon
original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to
Section 3.6, 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 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 may at any time terminate the
agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the
Company. 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 of Securities of the
series with respect to which such Authenticating Agent
will serve, 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.
Unless the Authenticating Agent has been
appointed by the Trustee at the request of the Company,
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 6.7.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities
of such series 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 of the series
designated therein referred to in the within-mentioned
Indenture.
SUNTRUST BANK, ATLANTA
As Trustee
By........................,
As Authenticating Agent
By........................,
Authorized Signatory
ARTICLE VII
Holders' Lists and Reports
by Trustee and Company
Section 7.1 Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than June 30 and
December 31 in each year a list for each such series
Outstanding, in such form as the Trustee may
reasonably require, of the names and addresses of
the Holders of Securities of each such series as of
the preceding June 15 or December 15, and
(b) at such other times as the Trustee may
request in writing, within 30 days after the receipt
by the Company 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, if
it is acting as such.
Section 7.2 Preservation of Information;
Communications 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 7.1 and
the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar, if it is
acting as such. The Trustee may destroy any list
furnished to it as provided in Section 7.1 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 of Securities, by receiving
and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any
director, officer, employee or agent of either of them
shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.3 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 December 15 and shall be transmitted by the
next succeeding March 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. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
Section 7.4 Reports by Company.
The Company 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 Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
Section 8.1 Company May Consolidate, Etc.,
only on Certain Terms.
Nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or
merger of the Company with or into any other Person, or
successive consolidations or mergers in which the Company
or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or
lease of the properties and assets of the Company
substantially as an entirety to any other Person
authorized to acquire and operate the same; provided,
however, that the Person formed by such consolidation or
into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an
entirety shall be a corporation, shall be organized and
validly existing under the laws of the United States of
America, any State thereof or the District of Columbia;
provided further, the Company hereby covenants and
agrees, that upon any such consolidation, merger,
conveyance, transfer or lease, the due and punctual
payment of the principal of (and premium, if any) and
interest, if any, on all of the Securities, according to
their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this
Indenture to be performed by the Company shall be
expressly assumed by supplemental indenture satisfactory
in form to the Trustee, executed and delivered to the
Trustee, by the Person (if other than the Company) formed
by such consolidation, or into which the Company shall
have been merged, or by the Person which shall have
acquired such property; and, further provided that
immediately after giving effect to such transaction, no
Event of Default specified in Section 5.1(e) or (f) shall
have happened and be continuing.
Section 8.2 Successor Corporation to Be Substituted.
In case of any such consolidation, merger,
conveyance, transfer or lease and upon the assumption by
the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to
the Trustee, of the due and punctual payment of the
principal of (and premium, if any) and interest, if any,
on all of the Securities and the due and punctual
performance of all of the covenants and conditions of
this Indenture to be performed by the Company, such
successor Person shall succeed to and be substituted for
the Company, with the same effect as if it had been named
herein as the Company, and thereafter, except in the case
of a lease, the predecessor corporation shall be relieved
of all obligations and covenants under this Indenture and
the Securities. Such successor Person thereupon may
cause to be signed, and may issue either in its own name
or in the name of Deposit Guaranty Corp. or in the name
of any corporation which previously shall have become the
Company in accordance with the provisions of this Article
any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such
successor Person instead of the Company and subject to
all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities
which such successor Person thereafter shall cause to be
signed and delivered to the Trustee for that purpose.
All of the Securities of a particular series so issued
shall in all respects have the same legal rank and
benefit under this Indenture as the Securities of such
series theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution
hereof.
Nothing contained in this Indenture or in any
of the Securities shall prevent the Company from merging
into itself any other Person or acquiring by purchase or
otherwise all or any part of the property of any other
Person, provided that, immediately after such merger or
acquisition, the Company shall not be in default in the
performance or observance of any of the terms, covenants
and conditions of this Indenture to be kept or performed
by it.
Section 8.3 Opinion of Counsel to Be Given Trustee.
The Trustee, subject to Sections 6.1 and 6.3,
may receive an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, conveyance, transfer
or lease and any such assumption complies with the
provisions of this Article.
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without
Consent of Holders.
Without the consent of any Holders, the
Company, 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 and the assumption by any such
successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for
the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities,
stating that such covenants are expressly being
included solely for the benefit of such series) or
to surrender any right or power herein conferred
upon the Company; or
(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 in respect of one or
more series of Securities, provided that any such
addition, change or elimination (i) shall neither
(A) apply to any Security of any series 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; or
(7) to establish the form or terms of
Securities of any series as permitted by Sections
2.1 and 3.1; or
(8) to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and
to 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, pursuant to the
requirements of Section 6.11(b); or
(9) subject to Section 9.7, to add to, change
or eliminate any of the provisions of Article
Thirteen in respect of one or more series of
Securities, provided that any such addition, change
or elimination shall not adversely affect the
interests of the Holders of Outstanding Securities
of any series in any material respect; or
(10) 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 (10) shall
not adversely affect the interests of the Holders of
Outstanding Securities of any series in any material
respect.
Section 9.2 Supplemental Indentures with
Consent of Holders.
With the consent of the Holders of not less
than a majority in principal amount of the Outstanding
Securities of all series affected by such supplemental
indenture (voting as a single class), by Act of said
Holders delivered to the Company and the Trustee, the
Company, 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 of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of
each such series 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 instalment of principal of or
interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original
Issue Discount Security that would be due and
payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, 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, in the case
of redemption, on or after the Redemption Date) or
modify the provisions of this Indenture with respect
to the subordination of the Securities of any series
in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount
of the Outstanding Securities of any series, 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 or Section 5.13, 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, or the deletion
of this proviso, in accordance with the requirements
of Sections 6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
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 9.3 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 the
trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) 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 9.4 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 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the
Trust Indenture Act.
Section 9.6 Reference in Securities to
Supplemental Indentures.
Securities of any series 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 shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of
such series.
Section 9.7 Subordination Unimpaired.
No provision in any supplemental indenture that
affects the superior position of the holders of Senior
Indebtedness shall be effective against any holder of
Senior Indebtedness, unless such holder shall have
consented thereto. Notwithstanding any provision in this
Indenture or otherwise, the rights of Entitled Persons in
respect of Other Financial Obligations under this
Indenture and otherwise in respect of the Securities or
any series of the securities may, at any time and from
time to time, be modified in any respect or eliminated
without the consent of any Entitled Person in respect of
Other Financial Obligations.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the
benefit of each series of Securities that it will duly
and punctually pay or cause to be paid the principal of
and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and
this Indenture. Interest on Securities shall be payable
without presentment of such Securities, and only to the
registered Holders thereof determined as provided in
Section 3.7. The Company shall have the right to require
a Holder, in connection with the payment of the principal
of and any premium and interest on a Security, to present
at the office or agency of the Company at which such
payment is made a certificate, in such form as the
Company may from time to time prescribe, to enable the
Company to determine its duties and liabilities with
respect to any taxes, assessments or governmental charges
which it may be required to deduct or withhold therefrom
under any present or future law of the United States of
America or of any State, County, Municipality or taxing
or withholding authority therein, and the Company shall
be entitled to determine its duties and liabilities with
respect to such deduction or withholding on the basis of
information contained in such certificate or, if no such
certificate shall be so presented, on the basis of any
presumption created by any such law, and shall be
entitled to act in accordance with such determination.
Section 10.2 Maintenance of Office or Agency.
So long as any Securities remain Outstanding,
the Company will maintain in each Place of Payment for
any series of Securities an office or agency where
Securities of that series may be presented or surrendered
for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in
respect of the Securities of that series 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 of one or more series 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
Securities of any series 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.
Section 10.3 Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Article Six, a Trustee, so that
there shall at all times be a Trustee hereunder.
Section 10.4 Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of or
any premium or interest on any of the Securities of that
series, 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 for any series of Securities, it will,
prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture
Act, 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 for
any series of Securities 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 (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii)
during the continuance of any default by the Company (or
any other obligor upon the Securities of that series) in
the making of any payment in respect of the Securities of
that series, 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 of that series.
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 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, in trust for
the payment of the principal of or any premium or
interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company 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 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.
Section 10.5 Statement by Officers as to Default.
The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officers' Certificate
(which need not comply with Section 1.2), stating whether
or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance
of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have
knowledge.
Section 10.6 Existence.
Subject to Article Eight, the Company will do
or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights
(charter and statutory) and franchises to carry on its
business; provided, however, that nothing in this Section
10.6 shall prevent (i) any consolidation or merger of the
Company, or any conveyance, transfer or lease of its
property and assets substantially as an entirety,
permitted by Article Eight, or (ii) the liquidation or
dissolution of the Company after such conveyance or
transfer of its property and assets substantially as an
entirety permitted by Article Eight.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities
of any series) in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of
less than all the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of
any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
Section 11.3 Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series
are to be redeemed (unless all of the Securities of such
series and of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions
(equal to the minimum authorized denomination for
Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum
authorized denomination for Securities of that series.
If less than all of the Securities of such series and of
a specified tenor are to be redeemed, the particular
Securities to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance
with the preceding sentence.
The Trustee shall promptly notify the Company
in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of
any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities
which has been or is to be redeemed.
Any selection of Securities by the Trustee
under this Section and any related notice to the Company
to be given by the Trustee under this Section may be made
or given by the Security Registrar on behalf of the
Trustee.
Section 11.4 Notice of Redemption.
Notice of redemption shall be given by first-
class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest,
if any,
(3) if less than all the Outstanding
Securities of any series are to be redeemed, the
identification (and, in the case of partial
redemption of any Securities, the principal amounts)
of the particular Securities to be redeemed,
(4) the CUSIP numbers of the Securities to be
redeemed,
(5) that on the Redemption Date the Redemption
Price and accrued interest, if any, will become due
and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease
to accrue on and after said date,
(6) the place or places where such Securities
are to be surrendered for payment of the Redemption
Price and accrued interest, if any, and
(7) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by
the Company or, at the Company's request, by the Trustee
in the name and at the expense of the Company and shall
be irrevocable.
Section 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.4) an amount
of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date
(unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.1,
installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more predecessor
Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the
principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in
part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Security Registrar so
requires, due endorsement by, or 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), and the
Company shall execute, and the Security Registrar shall
authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered. If a Global Security is so surrendered,
such new Security so issued shall be a Global security.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such
series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment,"
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms
of Securities of such series.
Section 12.2 Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Outstanding
Securities of a series (other than any previously called
for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the
election of the Company pursuant to the terms of such
Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or
any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not
been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee or
the Security Registrar at the Redemption Price specified
in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 12.3 Redemption of Securities for Sinking Fund.
Not less than 90 days prior to each sinking
fund payment date for any series of Securities, the
Company will deliver to the Trustee and the Security
Registrar an Officers' Certificate specifying the amount
of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of
cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that
series pursuant to Section 12.2 and the basis for such
credit and will also deliver to the Security Registrar
any Securities to be so delivered. Not less than 60 days
before each such sinking fund payment date the Trustee or
the Security Registrar shall select the Securities to be
redeemed upon such sinking fund payment date in the
manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
11.4. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in
the manner stated in Sections 11.5, 11.6 and 11.7.
ARTICLE XIII
Subordination of Securities
Section 13.1 Securities Subordinate to
Senior Indebtedness.
The Company covenants and agrees, and each
Holder of a Security of any series, by his acceptance
thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this
Article (subject to the provisions of Article XIV), the
indebtedness represented by the Securities of such series
and the payment of the principal of (and premium, if any)
and interest on each of the Securities of such series are
hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior
Indebtedness.
Section 13.2 Payment Over of Proceeds Upon
Dissolution, Etc.
In the event of (a) any insolvency or
bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets,
or (b) any liquidation, dissolution or other winding up
of the Company, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c)
any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company,
then and in any such event the holders of Senior
Indebtedness shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of
all Senior Indebtedness, or provision shall be made for
such payment in money or money's worth, before the
Holders of the Securities of any series are entitled to
receive any payment on account of principal of (or
premium, if any) or interest on the Securities of such
series, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for
application to the payment thereof, any payment or
distribution of any kind or character, whether in cash,
property or securities, which may be payable or
deliverable in respect of the Securities of any series in
any such case, proceeding, dissolution, liquidation or
other winding up or event.
In the event that, notwithstanding the
foregoing provisions of this Section, the Trustee or the
Holder of any Security of any series shall have received
any payment or distribution of assets of the Company of
any kind or charter, whether in cash, property or
securities, before all Senior Indebtedness is paid in
full or payment thereof provided for, and if such fact
shall, at or prior to the time of such payment or
distribution have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the
Company for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to
pay all Senior Indebtedness in full, after giving effect
to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
For purposes of this Article only, the words
"cash, property or securities" shall not be deemed to
include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or
readjustment which are subordinated in right of payment
to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in
this Article. The consolidation of the Company with, or
the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the
sale, conveyance, transfer or lease of its properties and
assets substantially as an entirety to another Person
upon the terms and conditions set forth in Article VIII
shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit
of creditors or marshalling of assets and liabilities of
the Company for the purposes of this Section if the
Person formed by such consolidation or into which the
Company is merged or the Person which acquires by sale,
conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, sale,
conveyance, transfer or lease, comply with the conditions
set forth in Article VIII.
Section 13.3 Prior Payment to Senior Indebtedness
Upon Acceleration of Securities.
In the event that any Securities of any series
are declared due and payable before their Stated
Maturity, then and in such event the holders of Senior
Indebtedness shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of
such Senior Indebtedness, or provision shall be made for
such payment in cash, before the Holders of the
Securities of such series are entitled to receive any
payment of the principal of, premium, if any, or interest
on the Securities of such series or on account of the
purchase or other acquisition of Securities of such
series; provided, however, that, if as specified as
contemplated by Section 3.1, Article XII is applicable to
any series of Securities, nothing in this Section shall
prevent the satisfaction of any sinking fund payment in
accordance with Article XII by delivering and crediting
pursuant to Section 12.2 Securities of such series which
have been acquired (upon redemption or otherwise) prior
to such declaration of acceleration.
In the event that, notwithstanding the
foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security of any series
prohibited by the foregoing provisions of this Section,
and if such fact shall, at or prior to the time of such
payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply
to any payment with respect to which Section 13.2 would
be applicable.
Section 13.4 No Payment When Senior Indebtedness in
Default.
(a) In the event and during the continuation
of any default in the payment of principal of (or
premium, if any) or interest on any Senior Indebtedness
beyond any applicable grace period with respect thereto,
or in the event that any event of default with respect to
any Senior Indebtedness shall have occurred and be
continuing permitting the holders of such Senior
Indebtedness (or a trustee on behalf of the holders
thereof) to declare such Senior Indebtedness due and
payable prior to the date on which it would otherwise
have become due and payable, unless and until such event
of default shall have been cured or waived or shall have
ceased to exist and such acceleration shall have been
rescinded or annulled, or (b) in the event any judicial
proceeding shall be pending with respect to any such
default in payment, or event of default, then no payment
shall be made by the Company on account of principal of
(or premium, if any) or interest on the Securities of any
series or on account of the purchase or other acquisition
of Securities of any series; provided, however, that, if
as specified as contemplated by Section 3.1, Article XII
is applicable to any series of Securities, nothing in
this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article XII by
delivering and crediting pursuant to Section 12.2
Securities of such series which have been acquired (upon
redemption or otherwise) prior to such default in payment
or event of default.
In the event that, notwithstanding the
foregoing, the Company shall make any payment to the
Trustee or the Holder of any Security of any series
prohibited by the foregoing provisions of this Section,
and if such fact shall, at or prior to the time of such
payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such
payment shall be paid over and delivered forthwith to the
Company.
The provisions of this Section shall not apply
to any payment with respect to which Section 13.2 would
be applicable.
Section 13.5 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere
in this Indenture or in any of the Securities of any
series shall prevent (a) the Company, at any time except
during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 13.2 or
under the conditions described in Section 13.3 or 13.4,
from making payments at any time of principal of (and
premium, if any) or interest on the Securities of any
series, or (b) the application by the Trustee of any
money deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or
interest on the Securities of any series or the retention
of such payment by the Holder, if, at the time of such
application by the Trustee, it did not have knowledge
that such payment would have been prohibited by the
provisions of this Article.
Section 13.6 Subrogation to Rights of Holders
of Senior Indebtedness.
Subject to the payment in full of all Senior
Indebtedness, the Holders of the Securities of a series
shall be subrogated (equally and ratably with the holders
of all indebtedness of the Company which by its express
terms is subordinated to indebtedness of the Company to
substantially the same extent as the Securities are
subordinated and is entitled to like rights of
subrogation) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior
Indebtedness until the principal of (and premium, if any)
and interest on the Securities of such series shall be
paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which
the Holders of the Securities of a series or the Trustee
would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior Indebtedness by
Holders of the Securities of a series or the Trustee,
shall, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the
Securities of such series, be deemed to be a payment or
distribution by the Company to or on account of the
Senior Indebtedness.
Section 13.7 Provisions Solely to Define
Relative Rights.
The provisions of this Article are and are
intended solely for the purpose of defining the relative
rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness (and, in the case
of Section 13.15, Entitled Persons in respect of Other
Financial Obligations) on the other hand. Nothing
contained in this Article or elsewhere in this Indenture
or in the Securities is intended to or shall (a) impair,
as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities,
the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under
this Article of the holders of Senior Indebtedness and
the rights under Section 13.15 of Entitled Persons in
respect of Other Financial Obligations is intended to
rank equally with all other general obligations of the
Company), to pay to the Holders of the Securities the
principal of and premium (if any) and interest on the
Securities as and when the same shall become due and
payable in accordance with their terms; (b) affect the
relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the
holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior
Indebtedness, and under Section 13.15 of Entitled Persons
in respect of Other Financial Obligations, to receive
cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 13.8 Trustee to Effectuate Subordination and
Payment Provisions.
Each Holder of a Security of any series by his
acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or
appropriate to effectuate the subordination and payment
provisions provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such
purposes.
Section 13.9 No Waiver of Subordination Provisions.
No right of any present or future holder of any
Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith,
by any such holder, or by any non-compliance by the
Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of
the foregoing paragraph, the holders of Senior
Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the
Holders of the Securities of any series, without
incurring responsibility to the Holders of the Securities
of any series and without impairing or releasing the
subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders
of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or
supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any
manner for the collection of Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 13.10 Notice to Trustee; Not Charged with
Knowledge of Prohibition.
The Company shall give prompt written notice to
the Trustee of any fact known to the Company which would
prohibit the making of any payment or distribution to or
by the Trustee in respect of the Securities of any
series. Notwithstanding the provisions of this Article
or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment
or distribution to or by the Trustee in respect of the
Securities of a series, unless and until the Trustee
shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any
trustee therefor or from any Entitled Person in respect
of Other Financial Obligations; and, prior to the receipt
of any such written notice, the Trustee, subject to the
provisions of Section 6.1, shall be entitled in all
respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including,
without limitation, the payment of the principal (and
premium, if any) or interest on any Security), then,
anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to
the purpose for which such money was received and shall
not be affected by any notice to the contrary which may
be received by it within two Business Days prior to such
date.
Subject to the provisions of Section 6.1, the
Trustee shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to
be a holder of Senior Indebtedness (or a trustee
therefor) or an Entitled Person in respect of Other
Financial Obligations to establish that such notice has
been given by a holder of Senior Indebtedness (or a
trustee therefor) or an Entitled Person in respect of
Other Financial Obligations. In the event that the
Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a
holder of Senior Indebtedness or an Entitled Person in
respect of Other Financial Obligations to participate in
any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness or Other Financial
Obligations held by such Person, the extent to which such
Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights
of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment or
distribution to such Person pending judicial
determination as to the right of such Person to receive
such payment or distribution.
Section 13.11 Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any payment or distribution of assets of
the Company referred to in this Article, the Trustee,
subject to the provisions of Section 6.1, and the Holders
of the Securities of any series shall be entitled to rely
upon any order or decree entered by any court of
competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or
to the Holders of Securities of such series, for the
purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders
of the Senior Indebtedness and other indebtedness of the
Company and the Entitled Persons in respect of Other
Financial Obligations, the amount thereof or payable
thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article.
Section 13.12 Trustee Not Fiduciary for Holders of
Senior Indebtedness or Entitled Persons.
The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness or
Entitled Persons in respect of Other Financial
Obligations and shall not be liable to any such holders
or Entitled Persons if it shall in good faith mistakenly
pay over or distribute to Holders of Securities of any
series or to the Company or to any other Person cash,
property or securities to which any holders of Senior
Indebtedness or Entitled Persons in respect of Other
Financial Obligations shall be entitled by virtue of this
Article or otherwise.
Section 13.13 Rights of Trustee as Holder of
Senior Indebtedness or Entitled Persons;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time
be held by it and with respect to any Other Financial
Obligations owed to the Trustee as an Entitled Person, to
the same extent as any other holder of Senior
Indebtedness or Entitled Person in respect of Other
Financial Obligations, as the case may be, and nothing in
this Indenture shall deprive the Trustee of any of its
rights as such holder or Entitled Person.
Nothing in this Article shall apply to claims
of, or payments to, the Trustee under or pursuant to
Section 6.7.
Section 13.14 Article Applicable to
Paying Agents.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in
this Article shall in such case (unless the context
otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully
for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the
Trustee; provided, however, that Section 13.13 shall not
apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as Paying Agent.
Section 13.15 Payment of Proceeds in Certain Cases.
(a) If, after giving effect to the provisions
of Section 13.2 and Section 13.6, any amount of cash,
property or securities shall be available for payment or
distribution in respect of the Securities ("Excess
Proceeds"), and any Entitled Persons in respect of Other
Financial Obligations shall not have received payment in
full of all amounts due or to become due on or in respect
of such Other Financial Obligations (and provision shall
not have been made for such payment in money or money's
worth), then such Excess Proceeds shall first be applied
(ratably with any amount of cash, property or securities
available for payment or distribution in respect of any
other indebtedness of the Company that by its express
terms provides for the payment over of amounts
corresponding to Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations) to pay or provide
for the payment of the Other Financial Obligations
remaining unpaid, to the extent necessary to pay all
Other Financial Obligations in full, after giving effect
to any concurrent payment or distribution to or for
Entitled Persons in respect of Other Financial
Obligations. Any Excess Proceeds remaining after the
payment (or provision for payment) in full of all Other
Financial Obligations shall be available for payment or
distribution in respect of the Securities.
(b) In the event that, notwithstanding the
foregoing provisions of subsection (a) of this Section,
the Trustee or Holder of any Security shall have received
any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or
securities, before all Other Financial Obligations are
paid in full or payment thereof duly provided for, and if
such fact shall, at or prior to the time of such payment
or distribution have been made known to the Trustee or,
as the case may be, such Holder, then and in such event,
subject to any obligation that the Trustee or such Holder
may have pursuant to Section 13.2, such payment or
distribution shall be paid over or delivered forthwith to
the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for payment in
accordance with subsection (a).
(c) Subject to the payment in full of all
Other Financial Obligations, the Holders of the
Securities shall be subrogated (equally and ratably with
the holders of all indebtedness of the Company that by
its express terms provides for the payment over of
amounts corresponding to Excess Proceeds to Entitled
Persons in respect of Other Financial Obligations and is
entitled to like rights of subrogation) to the rights of
the Entitled Persons in respect of Other Financial
Obligations to receive payments and distributions of
cash, property and securities applicable to the Other
Financial Obligations until the principal of and interest
on the Securities shall be paid in full. For purposes of
such subrogation, no payments or distributions to
Entitled Persons in respect of Other Financial
Obligations of any cash, property or securities to which
Holders of the Securities or the Trustee would be
entitled except for the provisions of this Section, and
no payments over pursuant to the provisions of this
Section to Entitled Persons in respect of Other Financial
Obligations by Holders of Securities or the Trustee,
shall, as among the Company, its creditors other than
Entitled Persons in respect of Other Financial
Obligations and the Holders of Securities be deemed to be
a payment or distribution by the Company to or on account
of the Other Financial Obligations.
(d) The provisions of subsections (a), (b) and
(c) of this Section are and are intended solely for the
purpose of defining the relative rights of the Holders of
the Securities, on the one hand, and the Entitled Persons
in respect of Other Financial Obligations, on the other
hand, after giving effect to the rights of the holders of
Senior Indebtedness, as provided in this Article.
Nothing contained in subsections (a), (b) or (c) of this
Section is intended to or shall affect the relative
rights against the Company of the Holders of the
Securities and (1) the holders of Senior Indebtedness or
(2) other creditors of the Company other than Entitled
Persons in respect of Other Financial Obligations.
ARTICLE XIV
Defeasance and Covenant Defeasance
Section 14.1 Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 3.1 provision is made
for either or both of (a) defeasance of the Securities of
a series under Section 14.2 or (b) covenant defeasance of
the Securities of a series under Section 14.3, then the
provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article
XIV, shall be applicable to the Securities of such
series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities
of such series, elect to have either Section 14.2 (if
applicable) or Section 14.3 (if applicable) be applied to
the Outstanding Securities of such series upon compliance
with the conditions set forth below in this Article XIV.
Section 14.2 Defeasance and Discharge.
Upon the Company's exercise of the above option
applicable to this Section, the Company shall be deemed
to have been discharged from its obligations with respect
to the Outstanding Securities of such series on and after
the date the conditions precedent set forth below are
satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to
have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under
such Securities and this Indenture, including the
provisions of Article XIII hereof, insofar as such
Securities are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments
acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding
Securities of such series to receive, solely from the
trust fund described in Section 14.5 as more fully set
forth in such Section, payments of the principal of (and
premium, if any) and interest on such Securities when
such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 3.4, 3.5, 3.6,
10.2 and 10.4 and such obligations as shall be ancillary
thereto, (C) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Trustee
hereunder and (D) this Article XIV. Subject to
compliance with this Article XIV, the Company may
exercise its option under this Section 14.2
notwithstanding the prior exercise of its option under
Section 14.3 with respect to the Securities of such
series. Following a defeasance, payment of the
Securities of such series may not be accelerated because
of an Event of Default.
Section 14.3 Covenant Defeasance.
Upon the Company's exercise of the above option
applicable to this Section and after the date the
conditions set forth below are satisfied, the Company
shall be released from its obligations under any covenant
applicable to such Securities that are determined
pursuant to Section 3.1 to be subject to this provision,
and the occurrence of an event specified in Section
5.1(d) with respect to any Section applicable to such
Securities that is determined pursuant to Section 3.1 to
be subject to this provision shall not be deemed to be an
Event of Default with respect to the Outstanding
Securities of such series and the provisions of Article
XIII of this Indenture shall no longer be in effect
(hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may
omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in
any such Section, 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 such Securities
shall be unaffected thereby.
Section 14.4 Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions precedent
to application of either Section 14.2 or Section 14.3 to
the Outstanding Securities of such series:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the Trustee
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 such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which
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, without
reinvestment, in the opinion of a nationally
recognized firm of independent certified public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee
to pay and discharge, the principal of (and premium,
if any) and interest on the Outstanding Securities
of such series on the Maturity of such principal,
premium, if any, or interest and any mandatory
sinking fund payments or analogous payments
applicable to the Outstanding Securities of such
series on the due dates thereof. Before such a
deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance
with Article XI, which shall be given effect in
applying the foregoing. For this purpose, "U.S.
Government Obligations" means securities that are
(x) direct obligations of the United States of
America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency
or instrumentality of 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, are not
callable or redeemable at the option of the issuer
thereof, and shall also include a depository 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 such U.S. Government Obligation
or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such
custodian for the account of the holder of such
depository receipt, 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 depository receipt from any amount
received by the custodian in respect of the U.S.
Government Obligation or the specific payment of
principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with
notice or lapse of time or both would become an
Event of Default with respect to the Securities of
such series shall have occurred and be continuing
(A) on the date of such deposit or (B) insofar as
subsections 5.1(e) and (f) are concerned, at any
time during the period ending on the 91st day after
the date of such deposit or, if longer, ending on
the day following the expiration of the longest
preference period applicable to the Company in
respect of such deposit (it being understood that
the condition in this Clause (B) shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance
shall not (A) cause the Trustee for the Securities
of such series to have a conflicting interest as
defined in Section 6.8 or for purposes of the Trust
Indenture Act with respect to any securities of the
Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance
shall not result in a breach or violation of, or
constitute a default under, this Indenture or any
other agreement or instrument to which the Company
is a party or by which it is bound.
(5) Such defeasance or covenant defeasance
shall not cause any Securities of such series then
listed on any registered national securities
exchange under the Securities Exchange Act of 1934,
as amended, to be delisted.
(6) In the case of an election under Section
14.2, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been
published by, the Internal Revenue Service a ruling,
or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax
law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders
of the Outstanding Securities of such series will
not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance
and will be subject to Federal income tax on the
same amounts, in the same manner and at the same
times as would have been the case if such defeasance
had not occurred.
(7) In the case of an election under Section
14.3, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the
same times as would have been the case if such
covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance
shall be effected in compliance with any additional
terms, conditions or limitations which may be
imposed on the Company in connection therewith
pursuant to Section 3.1.
(9) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
provided for relating to either the defeasance under
Section 14.2 or the covenant defeasance under
Section 14.3 (as the case may be) have been complied
with.
(10) At the time of such deposit: (A) no
default in the payment of all or a portion of
principal of (or premium, if any) or interest on any
Senior Indebtedness shall have occurred and be
continuing, and no event of default with respect to
any Senior Indebtedness shall have occurred and be
continuing and shall have resulted in such Senior
Indebtedness becoming or being declared due and
payable prior to the date on which it would
otherwise have become due and payable and (B) no
other event of default with respect to any Senior
Indebtedness shall have occurred and be continuing
permitting (after notice or the lapse of time, or
both) the holders of such Senior Indebtedness (or a
trustee on behalf of the holders thereof) to declare
such Senior Indebtedness due and payable prior to
the date on which it would otherwise have become due
and payable, unless, in the case of either Clause
(A) or Clause (B) above, each such default or event
of default shall have been cured or waived or shall
have ceased to exist.
Section 14.5 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 10.4, all money and U.S. Government
Obligations (including the proceeds thereof) deposited
with the Trustee pursuant to Section 14.4 in respect of
the Outstanding Securities of such series shall be held
in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to
the payment, either directly or through any Paying Agent
(but not including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from
other funds except to the extent required by law. Money
so held in trust shall not be subject to the provisions
of Article XIII.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or
assessed against the money or U.S. Government Obligations
deposited pursuant to Section 14.4 or the principal and
interest received in respect thereof.
Anything herein to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in
Section 14.4 which, 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 which
would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
Section 14.6 Reinstatement.
If the Trustee or the Paying Agent is unable to
apply any money in accordance with Section 14.5 by reason
of any order or judgment or any court or governmental
authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under
the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to
this Article XIV until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance
with Section 14.5; provided, however, that if the Company
makes any payment of principal of (and premium, if any)
or interest on any such Security following the
reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such
Securities to receive such payment from the money held by
the Trustee or the Paying Agent.
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.
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.
DEPOSIT GUARANTY CORP.
By__________________________
Name:_____________________
Title:____________________
Attest:
_________________________
Name:____________________
Title:___________________
SUNTRUST BANK, ATLANTA
By__________________________
Name:_____________________
Title:____________________
By__________________________
Name:_____________________
Title:____________________
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.
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.
DEPOSIT GUARANTY CORP.
By___________________________
Name:_____________________
Title:____________________
Attest:
_________________________
Name:____________________
Title:___________________
SUNTRUST BANK, ATLANTA
By___________________________
Name:_____________________
Title:____________________
By__________________________
Name:_____________________
Title:____________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1995, before me
personally came , to me known, who,
being by me duly sworn, did depose and say that he is
of Deposit Guaranty Corp., one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by
like authority.
________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 1995, before me
personally came ___________ and ___________, to me known,
who, being by me duly sworn, did depose and say that they
are _______________ and ______________ of SunTrust Bank,
Atlanta respectively, one of the corporations described in
and which executed the foregoing instrument; that they know
the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that they signed their names thereto by like authority.
________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of , 1995, before me
personally came , to me known, who,
being by me duly sworn, did depose and say that he is
of Deposit Guaranty Corp., one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by
like authority.
________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 1995, before me
personally came ___________ and ___________, to me known,
who, being by me duly sworn, did depose and say that they
are _______________ and ______________ of SunTrust Bank,
Atlanta respectively, one of the corporations described in
and which executed the foregoing instrument; that they know
the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that they signed their names thereto by like authority.
_____________________________
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1. Definitions . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . 3
covenant defeasance . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . 3
defeasance . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . 4
Entitled Person . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . 4
Excess Proceeds . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . 4
indebtedness for money borrowed . . . . . 4
Indenture . . . . . . . . . . . . . . . . 5
interest . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . 5
Original Issue Discount Security . . . . 5
Other Financial Obligations . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . 9
Security Register . . . . . . . . . . . . 9
Senior Indebtedness . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . 10
U.S. Government Obligations . . . . . . . 10
Vice President . . . . . . . . . . . . . 10
Voting Stock . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . 10
Section 1.2. Compliance Certificates and Opinions . . 10
Section 1.3. Form of Documents Delivered to Trustee . 11
Section 1.4. Acts of Holders; Record Dates . . . . . . 12
Section 1.5. Notices, Etc., to Trustee and Company . . 14
Section 1.6. Notice to Holders; Waiver . . . . . . . . 14
Section 1.7. Conflict with Trust Indenture Act . . . . 15
Section 1.8. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . 15
Section 1.9. Successors and Assigns . . . . . . . . . 15
Section 1.10. Separability Clause . . . . . . . . . . . 15
Section 1.11. Benefits of Indenture . . . . . . . . . . 16
Section 1.12. Governing Law . . . . . . . . . . . . . . 16
Section 1.13. Legal Holidays . . . . . . . . . . . . . 16
ARTICLE II
Security Forms
Section 2.1. Forms Generally . . . . . . . . . . . . . 16
Section 2.2. Form of Face of Security . . . . . . . . 17
Section 2.3. Form of Reverse of Security . . . . . . . 20
Section 2.4. Form of Legend for Global Securities . . 26
Section 2.5. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . 26
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series . . 27
Section 3.2 Denominations . . . . . . . . . . . . . . 31
Section 3.3 Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . 31
Section 3.4 Temporary Securities . . . . . . . . . . 33
Section 3.5 Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . 34
Section 3.6 Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . . 36
Section 3.7 Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . 37
Section 3.8 Persons Deemed Owners . . . . . . . . . . 39
Section 3.9 Cancellation . . . . . . . . . . . . . . 39
Section 3.10 Computation of Interest . . . . . . . . . 40
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture . 40
Section 4.2 Application of Trust Money . . . . . . . 42
ARTICLE V
Remedies
Section 5.1 Events of Default . . . . . . . . . . . . 42
Section 5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . 44
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . 46
Section 5.4 Trustee May File Proofs of Claim . . . . 46
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities . . . . . . . 47
Section 5.6 Application of Money Collected . . . . . 47
Section 5.7 Limitation on Suits . . . . . . . . . . . 48
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . 49
Section 5.9 Restoration of Rights and Remedies . . . 49
Section 5.10 Rights and Remedies Cumulative . . . . . 50
Section 5.11 Delay or Omission Not Waiver . . . . . . 50
Section 5.12 Control by Holders . . . . . . . . . . . 50
Section 5.13 Waiver of Past Defaults . . . . . . . . . 51
Section 5.14 Undertaking for Costs . . . . . . . . . . 51
Section 5.15 Waiver of Stay or Extension Laws . . . . 52
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities . . . 52
Section 6.2 Notice of Defaults . . . . . . . . . . . 52
Section 6.3 Certain Rights of Trustee . . . . . . . . 53
Section 6.4 Not Responsible for Recitals or
Issuance of Securities . . . . . . . . 54
Section 6.5 May Hold Securities . . . . . . . . . . . 55
Section 6.6 Money Held in Trust . . . . . . . . . . . 55
Section 6.7 Compensation and Reimbursement . . . . . 55
Section 6.8 Disqualification; Conflicting Interests . 56
Section 6.9 Corporate Trustee Required; Eligibility . 56
Section 6.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . 57
Section 6.11 Acceptance of Appointment by Successor . 59
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . 60
Section 6.13 Preferential Collection of Claims
Against Company . . . . . . . . . . . 61
Section 6.14 Appointment of Authenticating Agent . . . 61
ARTICLE VII
Holders' Lists and Reports
by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . 63
Section 7.2 Preservation of Information;
Communications to Holders . . . . . . 64
Section 7.3 Reports by Trustee . . . . . . . . . . . 64
Section 7.4 Reports by Company . . . . . . . . . . . 65
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
Section 8.1 Company May Consolidate, Etc., only on
Certain Terms . . . . . . . . . . . . 65
Section 8.2 Successor Corporation to Be Substituted . 66
Section 8.3 Opinion of Counsel to Be Given Trustee . 67
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . 67
Section 9.2 Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . 69
Section 9.3 Execution of Supplemental Indentures . . 71
Section 9.4 Effect of Supplemental Indentures . . . . 71
Section 9.5 Conformity with Trust Indenture Act . . . 71
Section 9.6 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . 71
Section 9.7 Subordination Unimpaired . . . . . . . . 72
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . 72
Section 10.2 Maintenance of Office or Agency . . . . . 73
Section 10.3 Vacancy in the Office of Trustee . . . . 73
Section 10.4 Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . 74
Section 10.5 Statement by Officers as to Default . . . 75
Section 10.6 Existence . . . . . . . . . . . . . . . . 76
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article . . . . . . . . 76
Section 11.2 Election to Redeem; Notice to Trustee . . 76
Section 11.3 Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . 77
Section 11.4 Notice of Redemption . . . . . . . . . . 78
Section 11.5 Deposit of Redemption Price . . . . . . . 79
Section 11.6 Securities Payable on Redemption Date . . 79
Section 11.7 Securities Redeemed in Part . . . . . . . 79
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article . . . . . . . . 80
Section 12.2 Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . 80
Section 12.3 Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . 81
ARTICLE XIII
Subordination of Securities
Section 13.1 Securities Subordinate to Senior
Indebtedness . . . . . . . . . . . . . 81
Section 13.2 Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . 82
Section 13.3 Prior Payment to Senior Indebtedness
Upon Acceleration of Securities . . . 83
Section 13.4 No Payment When Senior Indebtedness in
Default . . . . . . . . . . . . . . . 84
Section 13.5 Payment Permitted If No Default . . . . . 85
Section 13.6 Subrogation to Rights of Holders of
Senior Indebtedness . . . . . . . . . 86
Section 13.7 Provisions Solely to Define Relative
Rights . . . . . . . . . . . . . . . . 86
Section 13.8 Trustee to Effectuate Subordination and
Payment Provisions . . . . . . . . . . 87
Section 13.9 No Waiver of Subordination Provisions . . 87
Section 13.10 Notice to Trustee; Not Charged with
Knowledge of Prohibition . . . . . . . 88
Section 13.11 Reliance on Judicial Order or
Certificate of Liquidating Agent . . . 89
Section 13.12 Trustee Not Fiduciary for Holders of
Senior Indebtedness or Entitled
Persons . . . . . . . . . . . . . . . 90
Section 13.13 Rights of Trustee as Holder of Senior
Indebtedness or Entitled Persons;
Preservation of Trustee's Rights . . . 90
Section 13.14 Article Applicable to Paying Agents . . . 90
Section 13.15 Payment of Proceeds in Certain Cases . . 91
ARTICLE XIV
Defeasance and Covenant Defeasance
Section 14.1 Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . 93
Section 14.2 Defeasance and Discharge . . . . . . . . 93
Section 14.3 Covenant Defeasance . . . . . . . . . . . 94
Section 14.4 Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . 94
Section 14.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . 98
Section 14.6 Reinstatement . . . . . . . . . . . . . . 99
NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
Exhibit (4)(g)
OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
DEPOSIT GUARANTY CORP.
and
Warrant Agent
WARRANT AGREEMENT
Dated as of ________________________ , 1995
THIS WARRANT AGREEMENT, dated as of
, 1995 between DEPOSIT GUARANTY CORP., a
Mississippi business corporation (the "Company"), and
_________, a [bank or trust company] organized and
existing under the laws of , as
warrant agent (the "Warrant Agent").
WHEREAS, the Company has entered into an
Indenture dated as of , 1995 (the "Senior
Indenture") with SunTrust Bank, Atlanta, as trustee (the
"Senior Indenture Trustee"), providing for the issuance
by the Company from time to time, in one or more series,
of its unsecured debt which may be either senior
debentures, notes, bonds and/or other evidences of
indebtedness (the "Senior Debt Securities"); and
WHEREAS, the Company has entered into an
Indenture dated as of _______, 1995 (the "Subordinated
Indenture") with SunTrust Bank, Atlanta, as trustee (the
"Subordinated Indenture Trustee"), providing for the
issuance by the Company from time to time, in one or more
series, of subordinated debentures, notes, bonds, and/or
other evidences of indebtedness which may be convertible
at the option of a holder or the Company into Equity
Securities (as described herein) of the Company (the
"Subordinated Debt Securities"); and
WHEREAS, the Company has provided for the
offering, from time to time either separately or
together, of (i) shares of its Preferred Stock, no par
value (the "Preferred Stock") which may be convertible,
at the option of the holder, into Common Stock or any
other class or series of Equity Securities of the Company
or convertible at the option of the Company into Equity
Securities or debt securities of the Company, (ii)
depositary shares representing fractional interests in
shares of its Preferred Stock ("Depositary Shares"), and
(iii) Common Stock, no par value (the "Common Stock,"
together with the Preferred Stock and Depositary Shares,
the "Equity Securities"), in amounts, at prices, and on
terms to be determined at the time of the offering. The
Senior Debt Securities, Subordinated Debt Securities,
Preferred Stock, Depositary Shares, and Common Stock
offered hereby, are collectively referred to herein as
the "Securities"; and
WHEREAS, the Company proposes to issue from
time to time warrants (the "Warrants") representing the
right to purchase Senior Debt Securities, Subordinated
Debt Securities, Common Stock, Preferred Stock and
Depositary Shares, in any combination thereof (the
underlying securities purchasable through exercise of
Warrants, the "Underlying Securities"); and
WHEREAS, the Company has duly authorized the
execution and delivery of this Warrant Agreement to
provide for the issuance of Warrants to be exercisable at
such times and for such prices, and to have such other
provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES
1.1 Issuance of Warrants. Warrants may be
issued from time to time, together with or separately
from the Securities (the "Offered Securities"). Prior to
the issuance of any Warrants, there shall be established
by or pursuant to a resolution or resolutions duly
adopted by the Company's Board of Directors or by any
committee thereof duly authorized to act with respect
thereto (a "Board Resolution"):
(a) the title and aggregate number of
such Warrants;
(b) whether such Warrants are to be
issued with any Offered Securities and, if so, the title,
aggregate principal amount or number of shares, ranking
and terms of any such Offered Securities; the number of
Warrants to be issued with each $1,000 principal amount
or 100 shares of such Offered Securities (or such other
principal amount and currency or number of shares of such
Offered Securities as is provided for in the Board
Resolution); and the date, if any, on and after which
such Warrants and such Offered Securities will be
separately transferable (the "Detachable Date"); if the
Warrants are offered for separate consideration, the
offering price and the currency for which the Warrants
may be purchased;
(c) the title, aggregate principal amount
or number of shares, ranking and terms of the Underlying
Securities that may be purchased upon exercise of such
Warrants;
(d) the time or times at which, or period
or periods during which, such Warrants may be exercised
and the final date on which such Warrants may be
exercised (the "Expiration Date");
(e) the principal amount or number of
shares of Underlying Securities that may be purchased
upon exercise of each Warrant, [and] the price, or the
manner of determining the price (the "Warrant Price"), at
which such principal amount or number of shares may be
purchased upon such exercise, and the currency and manner
of payment;
(f) the terms of any right to redeem such
Warrants; and
(g) any other terms of such Warrants not
inconsistent with the provisions of this Agreement.
1.2 Form and Execution of Warrant
Certificates. (a) The Warrants shall be evidenced by
warrant certificates (the "Warrant Certificates"), which
may be in registered or bearer form and otherwise shall
be substantially in such form or forms as are set forth
in Exhibit A hereto or as shall be established by or
pursuant to a Board Resolution. Each Warrant Certificate
whenever issued, shall be dated the date it is
countersigned by the Warrant Agent and may have such
letters, numbers or other identifying marks and such
legends or endorsements printed, lithographed or engraved
thereon as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any
applicable law, rule or regulation or with any rule or
regulation of any securities exchange on which the
Warrants may be listed, or to conform to usage, as the
officer of the Company executing the same may approve
(such officer's execution thereof to be conclusive
evidence of such approval). Each Warrant Certificate
shall evidence one or more Warrants.
(b) The Warrant Certificates shall be
signed in the name and on behalf of the Company by its
Chairman of the Board, a Vice-Chairman, its President or
a Vice President (any reference to a Vice President of
the Company herein shall be deemed to include any Vice
President of the Company whether or not designated by a
number or a word or words added before or after the title
"Vice President") under its corporate seal, and attested
by its Secretary or an Assistant Secretary. Such
signatures may be manual or facsimile signatures of the
present or any future holder of any such office and may
be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form
of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant
Certificates.
(c) No Warrant Certificate shall be valid
for any purpose, and no Warrant evidenced thereby shall
be deemed issued or exercisable, until such Warrant
Certificate has been countersigned by the manual or
facsimile signature of the Warrant Agent. Such signature
by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence that
the Warrant Certificate so countersigned has been duly
issued hereunder.
(d) In case any officer of the Company who
shall have signed any Warrant Certificate either manually
or by facsimile signature shall cease to be such officer
before the Warrant Certificate so signed shall have been
countersigned and delivered by the Warrant Agent, such
Warrant Certificate nevertheless may be countersigned and
delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the
Company; and any Warrant Certificate may be signed on
behalf of the Company by such person as, at the actual
date of the execution of such Warrant Certificate, shall
be the proper officer of the Company, although at the
date of the execution of this Agreement such person was
not such an officer.
1.3 Issuance and Delivery of Warrant
Certificates. At any time and from time to time after
the execution and delivery of this Agreement, the Company
may deliver Warrant Certificates executed by the Company
to the Warrant Agent for countersignature. Except as
provided in the following sentence, the Warrant Agent
shall thereupon countersign and deliver such Warrant
Certificates to or upon the written request of the
Company. Subsequent to the original issuance of a
Warrant Certificate evidencing Warrants, the Warrant
Agent shall countersign a new Warrant Certificate
evidencing such Warrants only if such Warrant Certificate
is issued in exchange or substitution for one or more
previously countersigned Warrant Certificates evidencing
such Warrants or in connection with their transfer, as
hereinafter provided.
1.4 Temporary Warrant Certificates. Pending
the preparation of definitive Warrant Certificates, the
Company may execute, and upon the order of the Company
the Warrant Agent shall countersign and deliver,
temporary Warrant Certificates that are printed,
lithographed, typewritten, mimeographed or otherwise
produced, substantially of the tenor of the definitive
Warrant Certificates in lieu of which they are issued and
with such appropriate insertions, omissions,
substitutions and other variations as the officer
executing such Warrant Certificates may determine, as
evidenced by such officer's execution of such Warrant
Certificates.
If temporary Warrant Certificates are issued,
the Company will cause definitive Warrant Certificates to
be prepared without unreasonable delay. After the
preparation of definitive Warrant Certificates, the
temporary Warrant Certificates shall be exchangeable for
definitive Warrant Certificates upon surrender of the
temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or at ,]
without charge to the Holder, as defined in Section
1.6 hereof. Upon surrender for cancellation of any one
or more temporary Warrant Certificates, the Company shall
execute and the Warrant Agent shall countersign and
deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of
Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the
same benefits under this Agreement as definitive Warrant
Certificates.
1.5 Payment of Taxes. The Company will pay
all stamp and other duties, if any, to which this
Agreement or the original issuance of the Warrants or
Warrant Certificates may be subject under the laws of the
United States of America or any state or locality.
1.6 Definition of Holder. The term "Holder"
or "Holders," as used herein with reference to a Warrant
Certificate, shall mean [if registered Warrants -- the
person or persons in whose name such Warrant Certificate
shall then be registered as set forth in the Warrant
Register to be maintained by the Warrant Agent pursuant
to Section 4.1 for that purpose] [if bearer Warrants --
the bearer of such Warrant Certificate] or, in the case
of Warrants that are issued with Offered Securities and
cannot then be transferred separately therefrom, [if
registered Offered Securities and Warrants that are not
then detachable -- the person or persons in whose name
the related Offered Securities shall be registered as set
forth in the security register of the related Offered
Securities] [if bearer Offered Securities and Warrants
that are not then detachable -- the bearer of the related
Offered Security], prior to the Detachable Date. [If
registered Offered Securities and Warrants that are not
then detachable -- The Company will, or will cause the
security registrar of any such Offered Securities to,
make available to the Warrant Agent at all times
[including on and after the Detachable Date, in the case
of Warrants originally issued with Offered Securities and
not subsequently transferred separately therefrom) such
information as to holders of Offered Securities with
Warrants as may be necessary to keep the Warrant Register
up to date.)
ARTICLE II
DURATION AND EXERCISE OF WARRANTS
2.1 Duration of Warrants. Each Warrant may be
irrevocably exercised in whole but not in part at the
time or times, or during the period or periods, provided
by or pursuant to the Board Resolution relating thereto
and specified in the Warrant Certificate evidencing such
Warrant. Each Warrant not exercised at or before 5:00
P.M., New York City time, on its Expiration Date shall
become void, and all rights of the Holder of such Warrant
thereunder and under this Agreement shall cease,
provided, however, that the Company reserves the right
to, and may, in its sole discretion, at any time and from
time to time, at such time or times as the Company so
determines, extend the Expiration Date of the Warrants
for such periods of time as it chooses; further provided
that in no case may the Expiration Date of the Warrants
(as extended) be extended beyond five years from the
Expiration Date set forth above. Whenever the Expiration
Date of the Warrants is so extended, the Company shall at
least 20 days prior to the then Expiration Date cause to
be mailed to the Warrant Agent and the registered Holders
of the Warrants in accordance with the provisions of
Section 6.5 hereof a notice stating that the Expiration
Date has been extended and setting forth the new
Expiration Date.
2.2 Exercise of Warrants. (a) The Holder of
a Warrant shall have the right, at its option, to
exercise such Warrant and, subject to subsection (f) of
this Section 2.2, purchase the principal amount or number
of shares of Underlying Securities provided for therein
at the time or times or during the period or periods
referred to in Section 2.1 and specified in the Warrant
Certificate evidencing such Warrant. Except as may be
provided in a Warrant Certificate, a Warrant may be
exercised by completing the form of election to purchase
set forth on the reverse side of the Warrant Certificate,
which shall be substantially in the form set forth in
Exhibit B hereto or as shall be established by or
pursuant to a Board Resolution, by duly executing and
delivering the same, together with payment in full of the
Warrant Price in the currency and manner of payment
specified in the Board Resolution, to the Warrant Agent
at the corporate trust office of the Warrant Agent [or at
________]. Except as may be provided in a Warrant
Certificate, the date on which such Warrant Certificate
and payment are received by the Warrant Agent as
aforesaid shall be deemed to be the date on which the
Warrant is exercised and the Underlying Securities
issued.
(b) As soon as practicable after the
exercise of a Warrant, the Company shall issue, pursuant
to the Senior Indenture or Subordinated Indenture, if
applicable, in authorized denominations to or upon the
order of the Holder of such Warrant, the Underlying
Securities to which such Holder is entitled, in [if
registered Underlying Securities - - fully registered
form] [if registered or unregistered Underlying
Securities - - the form required under such Senior
Indenture or Subordinated Indenture, if applicable, or in
the form otherwise required and, in the case of
Underlying Securities in registered form,] registered in
such name or names as may be directed by such Holder.
(c) If fewer than all of the Warrants
evidenced by a Warrant Certificate are exercised, the
Company shall execute, and an authorized officer of the
Warrant Agent shall countersign and deliver, a new
Warrant Certificate evidencing the number of Warrants
remaining unexercised.
(d) The Warrant Agent shall deposit all
funds received by it in Payment of the Warrant Price in
the account of the Company maintained with it for such
purpose and shall advise the Company by telephone by 5:00
P.M., New York City time, of each day on which a payment
of the Warrant Price for Warrants is received of the
amount so deposited in its account. The Warrant Agent
shall promptly confirm in writing to the Company such
telephone advice.
(e) The Warrant Agent shall, from time to
time, as promptly as practicable, advise the Senior
Indenture Trustee and the Subordinated Indenture Trustee,
if applicable, and the Company of (i) the number of
Warrants of each title exercised as provided herein, (ii)
the instructions of each Holder with respect to delivery
of the Underlying Securities to which such Holder is
entitled upon such exercise, (iii) the delivery of
Warrant Certificates evidencing the balance, if any, of
the Warrants remaining unexercised after such exercise,
and (iv) such other information as the Senior Indenture
Trustee or the Subordinated Indenture Trustee, if
applicable, or the Company shall reasonably require.
(f) The Company shall not be required to
pay any stamp or other tax or other governmental charge
that may be imposed in connection with any transfer
involved in the issuance of the Underlying Securities;
and in the event that any such transfer is involved, the
Company shall not be required to issue any Underlying
Securities (and the Holder's purchase of the Underlying
Securities upon the exercise of such Holder's Warrant
shall not be deemed to have been consummated) until such
tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such
tax or other charge is due.
2.3 Common Share Warrant Adjustments. The
Warrant Price of a Warrant representing the right to
purchase Common Stock (a "Common Share Warrant"), as such
Warrant Price (the "Common Share Warrant Price") is set
forth in the Board Resolution, shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall pay a
dividend or make a distribution on the underlying Common
Stock purchasable through exercise of the Common Share
Warrants (the "Underlying Common Stock") in Common Stock,
the Common Share Warrant Price in effect at the opening
of business on the day following the date fixed for the
determination of shareholders entitled to receive such
dividend or other distribution shall be adjusted by
multiplying such Common Share Warrant Price by a fraction
of which the numerator shall be the number of Common
Stock outstanding at the close of business on the record
date and the denominator shall be the sum of such number
of Common Stock and the total number of Common Stock
constituting such dividend or other distribution and the
resulting adjusted Common Share Warrant Price shall
become effective immediately after the opening of
business on the day following the record date, except as
provided in subsection (i) below.
(b) In case the Company shall subdivide
the outstanding Underlying Common Stock into a greater
number of Underlying Common Stock, the Common Share
Warrant Price in effect at the opening of business on the
day following the date upon which such subdivision
becomes effective shall be proportionately reduced, and
conversely, in case the Company shall combine the
outstanding Underlying Common Stock into a smaller number
of Underlying Common Stock, the Common Share Warrant
Price in effect at the opening of business on the day
following the date upon which such combination becomes
effective shall be proportionately increased, and the
resulting reduced or increased Common Share Warrant
Price, as the case may be, shall become effective
immediately after the opening of business on the day
following the date upon which such subdivision or
combination becomes effective.
(c) In case the Company shall issue
rights or warrants to all holders of Common Stock
entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe for
or purchase Common Stock at a price per share less than
the current market price per Common Share (as defined for
purposes of this subparagraph (c) in subparagraph (f)
below), at the record date for the determination of
shareholders entitled to receive such rights or warrants,
the Common Share Warrant Price in effect after such
record date shall be determined by multiplying such
Common Share Warrant Price by a fraction, the numerator
of which shall be the number of Common Stock outstanding
on the record date for issuance of such rights or
warrants plus the number of Common Stock which the
aggregate offering price of the total number of Common
Stock so offered would purchase at such current market
price, and the denominator of which shall be the number
of Common Stock outstanding on the record date for
issuance of such rights or warrants plus the number of
additional Common Stock receivable upon exercise of such
rights or warrants. Such adjustment shall be made
successively whenever any such rights or warrants are
issued, and shall become effective immediately, except as
provided in subparagraph (i) below, after such record
date. In determining whether any rights or warrants
entitle the holders of Common Stock to subscribe for or
purchase Common Stock at less than such current market
price, and in determining the aggregate offering price of
such Common Stock, there shall be taken into account any
consideration received by the Company for such rights or
warrants plus the exercise price thereof, the value of
such consideration or exercise price, as the case may be,
if other than cash, to be determined by the Board of
Directors.
(d) In case the Company shall distribute
to all holders of Common Stock any shares of capital
stock of the Company (other than Common Stock) or
evidences of its indebtedness or assets (excluding cash
dividends or distributions paid from retained earnings of
the Company or dividends payable in Common Stock) or
rights or warrants to subscribe for or purchase any of
its securities (excluding those rights or warrants
referred to in subparagraph (c) above) (any of the
foregoing being hereinafter in this subparagraph (d)
called the "Distributed Securities"), then, in each such
case, unless the Company elects to reserve such
Distributed Securities for distribution to the holders of
the Common Share Warrants upon the exercise of the Common
Share Warrants so that any such holder exercising Common
Share Warrants will receive upon such exercise, in
addition to the Underlying Common Stock to which such
holder is entitled, the amount and kind of such
Distributed Securities which such holder would have
received if such holder had, immediately prior to the
record date for the distribution of the Distributed
Securities, exercised its Common Share Warrants into
Underlying Common Stock, the Common Share Warrant Price
shall be adjusted so that the same shall equal the price
determined by multiplying the Common Share Warrant Price
in effect immediately prior to the date of such
distribution by a fraction the numerator of which shall
be the current market price per Common Share (as defined
for purposes of this subparagraph (d) in subparagraph (f)
below) on the record date mentioned above less the then
fair market value (as determined by the Board of
Directors of the Company, whose determination shall, if
made in good faith, be conclusive) of the portion of the
Distributed Securities so distributed allocable to one
Common Share, and the denominator of which shall be the
then current market price per Common Share (determined as
provided in subparagraph (f) below); provided, however,
that in the event the then fair market value (as so
determined) of the portion of the Distributed Securities
so distributed applicable to one Common Share is equal to
or greater than the current market price per Common Share
(as defined in subsection (f) below) on the record date
mentioned above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each holder of
Common Share Warrants shall have the right to receive the
amount and kind of Distributed Securities such holder
would have received had he exercised such Common Share
Warrant immediately prior to the record date for the
distribution of the Distributed Securities. Such
adjustment shall become effective immediately, except as
provided in subsection (i) below, after the record date
for the determination of stockholders entitled to receive
such distribution.
(e) If, pursuant to subparagraph (c) or
(d) above, the Common Share Warrant Price shall have been
adjusted because the Company has declared a dividend, or
made a distribution, on the outstanding Underlying Common
Stock in the form of any right or warrant to purchase
securities of the Company, or the Company has issued, any
such right or warrant, then, upon the expiration of any
such unexercised right or unexercised warrant, the Common
Share Warrant Price shall forthwith be adjusted to equal
the Common Share Warrant Price that would have applied
had such right or warrant never been declared,
distributed or issued.
(f) For the purposes of any computation
under subparagraph (c) above, the current market price
per Common Share on any date shall be deemed to be the
average of the reported last sales prices for the thirty
consecutive Trading Days (as defined below) commencing
forty-five Trading Days before the date in question. For
the purpose of any computation under subparagraph (d)
above, the current market price per Common Share on any
date shall be deemed to be the average of the reported
last sales prices for the ten consecutive Trading Days
before the date in question. The reported last sales
price for each day (whether for purposes of subparagraph
(c) or subparagraph (d)) shall be the reported last sales
price, regular way, or, in case no sale takes place on
such day, the average of the reported closing bid and
asked prices, regular way, in either case as reported on
the New York Stock Exchange Composite Tape or, if such
Common Stock are not listed or admitted to trading on the
New York Stock Exchange at such time, on the principal
national securities exchange on which such Common Stock
are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange,
on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or, if such Common Stock are not quoted on
such National Market System, the average of the closing
bid and asked prices on such day in the over-the-counter
market as reported by NASDAQ or, if bid and asked prices
for the Common Stock on each such day shall not have been
reported through NASDAQ, the average of the bid and asked
prices for such date as furnished by any New York Stock
Exchange member firm regularly making a market in such
Common Stock selected for such purpose by the Board of
Directors of the Company or a committee thereof or, if no
such quotations are available, the fair market value of
such Common Share as determined by a New York Stock
Exchange member firm regularly making a market in the
Common Stock selected for such purpose by the Board of
Directors of the Company or a committee thereof. As used
in this Section 2.3, the term "Trading Day" with respect
to a Common Share means (x) if such Common Stock are
listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day
on which the New York Stock Exchange or such other
national securities exchange is open for business or (y)
if such Common Stock are quoted on the National Market
System of the NASDAQ, a day on which trades may be made
on such National Market System or (z) otherwise, any day
other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(g) No adjustment in the Common Share
Warrant Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in
such Common Share Warrant Price; provided, however, that
any adjustments which by reason of this subparagraph (g)
are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and
provided further that adjustment shall be required and
made in accordance with the provisions of this Section
2.3 (other than this subsection (g)) not later than such
time as may be required in order to preserve the tax free
nature of a distribution to the holders of Common Stock.
All calculations under this Section 2.3 shall be made to
the nearest cent or to the nearest .01 of a share, as the
case may be, with one-half cent and .005 of a share,
respectively, being rounded upward. Anything in this
Section 2.3 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Common
Share Warrant Price, in addition to those required by
this subparagraph (g), as it in its discretion shall
determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights
or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends)
hereafter made by the Company to its shareholders shall
not be taxable.
(h) Whenever the Common Share Warrant
Price is adjusted as herein provided, the Company shall
promptly file with the transfer agent a certificate,
signed by its Chairman of the Board, a Vice-Chairman, its
President or a Vice President (an "Adjustment
Certificate"), setting forth the Common Share Warrant
Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which
Adjustment Certificate shall be conclusive evidence of
the correctness of such adjustment; provided, however,
that the failure of the Company to file such Adjustment
Certificate shall not invalidate any corporate action by
the Company.
(i) In any case in which this Section 2.3
provides that an adjustment shall become effective
immediately after a record date for an event, the Company
may defer until the occurrence of such event (x) issuing
to the holder of any Common Share Warrant converted after
such record date and before the occurrence of such event
the additional shares of Underlying Common Stock issuable
upon such exercise by reason of the adjustment required
by such event over and above the Underlying Common Stock
issuable upon such exercise before giving effect to such
adjustment and (y) paying to such holder any amount of
cash in lieu of any fractional share.
(j) Whenever the Common Share Warrant
Price is adjusted as provided in this Section 2.3, the
Company shall, as promptly as practicable thereafter,
cause to be mailed to each Holder of Common Share
Warrants at its then registered address by first-class
mail, postage prepaid, a notice of such adjustment of the
Common Share Warrant Price setting forth such adjusted
Common Share Warrant Price and the effective date of such
adjusted Common Share Warrant Price; provided, however,
that the failure of the Company to give such notice shall
not invalidate any corporate action by the Company.
(k) Whenever there shall be any change in
the Common Share Warrant Price hereunder, then there
shall be an adjustment (to the nearest hundredth of a
share) in the number of Common Stock purchasable upon
exercise of this Common Share Warrant, which adjustment
shall become effective at the time such change in the
Common Share Warrant Price becomes effective and shall be
made by multiplying the number of Common Stock
purchasable upon exercise of this Common Share Warrant
immediately before such change in the Common Share
Warrant Price by a fraction the numerator of which is the
Common Share Warrant Price immediately before such change
and the denominator of which is the Common Share Warrant
Price immediately after such change. The Common Share
Warrant Price per Common Share shall be adjusted and
readjusted from time to time as provided in this Section
2.3 and, as so adjusted or readjusted, shall remain in
effect until a further adjustment or readjustment thereof
is required by this Section 2.3.
(l) The form of Warrant Certificate
evidencing Common Share Warrants (a "Common Share Warrant
Certificate") need not be changed because of any
adjustment made pursuant to this Section 2.3, and Common
Share Warrant Certificates issued after such adjustment
may state the same Common Share Warrant Price and the
same number of Common Stock as are stated in the Common
Share Warrant Certificates initially issued pursuant to
this Agreement. The Company, however, may at any time in
its sole discretion make any change in the form of Common
Share Warrant Certificate that it may deem appropriate to
reflect such adjustment and that does not otherwise
affect the substance thereof, and any Common Share
Warrant Certificate thereafter issued or countersigned,
whether in exchange or substitution for an outstanding
Common Share Warrant Certificate or otherwise, may be in
the form as so changed.
2.4 Reservation of Shares. Prior to the
issuance of any Common Share Warrants or any Warrants
representing the right to purchase shares of Preferred
Stock ("Preferred Stock Warrants") or Depositary Shares
("Depositary Share Warrants") there shall have been
reserved, and the Company shall at all times keep
reserved, out of its authorized but unissued Common Stock
and Preferred Stock or its issued Common Stock or shares
of Preferred Stock held in treasury, or both, a number of
shares sufficient to provide for the exercise of the
Common Share Warrant Certificates and Warrant
Certificates evidencing Preferred Stock Warrants and
Depositary Share Warrants.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANTS
3.1 No Rights as Holder of Underlying Security
Conferred by Warrants or Warrant Certificates. No
Warrant or Warrant Certificate shall entitle the Holder
to any of the rights of a holder of Underlying
Securities, including, without limitation, the right to
receive the payment of principal of, or premium, if any,
on or interest, dividends or distributions of any kind,
if any on, Underlying Securities, the right to exercise
any voting rights, or the right to enforce any of the
covenants in the Senior Indenture or Subordinated
Indenture, if applicable.
3.2 Lost, Stolen, Destroyed or Mutilated
Warrant Certificates. Upon receipt by the Company and
the Warrant Agent of evidence reasonably satisfactory to
them of the ownership of and the loss, theft, destruction
or mutilation of any Warrant Certificate and of indemnity
(other than in connection with any mutilated Warrant
Certificates surrendered to the Warrant Agent for
cancellation) reasonably satisfactory to them, in the
absence of notice to the Company or the Warrant Agent
that the Warrant Certificate has been acquired by a bona
fide purchaser, the Company shall execute, and the
Warrant Agent shall countersign and deliver, in exchange
for or in lieu of each lost, stolen, destroyed or
mutilated Warrant Certificate, a new Warrant Certificate
evidencing a like number of Warrants of the same title.
Upon the issuance of a new Warrant Certificate under this
Section, the Company may require the payment of a sum
sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection
therewith and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith.
Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent a
contractual obligation of the Company, whether or not
such lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be
entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant
Certificates, duly executed and delivered hereunder,
evidencing Warrants of the same title. The provisions of
this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect
to the replacement of lost, stolen, destroyed or
mutilated Warrant Certificates.
3.3 Holder of Warrants May Enforce Rights.
Notwithstanding any other provisions of this Agreement, a
Holder, without the consent of the Warrant Agent, the
Senior Indenture Trustee or the Subordinated Indenture
Trustee, if applicable, the holder of any Underlying
Securities or the Holder of any other Warrant, may, on
its own behalf and for its own benefit, enforce, and may
institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise in respect
of, its right to exercise its Warrant or Warrants in the
manner provided in this Agreement and its Warrant
Certificate.
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANTS
4.1 [Warrant Register;] Exchange and Transfer
of Warrants. [If registered Warrants - - The Warrant
Agent shall maintain, at its corporate trust office [or
at __________], a register (the "Warrant Register") in
which, upon the issuance of Warrants, or on and after the
Detachable Date in the case of Warrants not separately
transferable prior thereto, and, subject to such
reasonable regulations as the Warrant Agent may
prescribe, it shall register Warrant Certificates and
exchanges and transfers thereof. The Warrant Register
shall be in written form or in any other form capable of
being converted into written form within a reasonable
time.
Except as provided in the following sentence,
upon surrender at the corporate trust office of the
Warrant Agent [or at _____________], Warrant Certificates
may be exchanged for one or more other Warrant
Certificates of different denominations evidencing the
same aggregate number of Warrants of the same title, or
may be transferred in whole or in part. A Warrant
Certificate evidencing Warrants that are not then
transferable separately from the Offered Security with
which they were issued may be exchanged or transferred
prior to its Detachable Date only together with such
Offered Security and only for the purpose of effecting,
or in conjunction with, an exchange or transfer of such
Offered Security; and on or prior to the Detachable Date,
[if registered Offered Securities and Warrants,] - - each
exchange or transfer of such Offered Security on the
security register of the Offered Securities shall operate
also to exchange or transfer the related Warrants] [if
bearer Offered Securities and Warrants -- an exchange or
transfer of possession of the related Offered Security
shall operate also to exchange or transfer the related
Warrants]. [If registered Warrants - - A transfer shall
be registered upon surrender of a Warrant Certificate to
the Warrant Agent at its corporate trust office or at any
other office indicated in the Warrant Prospectus for
transfer, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for
transfer, all in form satisfactory to the Company and the
Warrant Agent.] Whenever a Warrant Certificate is
surrendered for exchange or transfer, the Warrant Agent
shall countersign and deliver to the person or persons
entitled thereto one or more Warrant Certificates duly
executed by the Company, as so requested. The Warrant
Agent shall not be required to effect any exchange or
transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant. All
Warrant Certificates issued upon any exchange or transfer
of a Warrant Certificate shall be the valid obligations
of the Company, evidencing the same obligations, and
entitled to the same benefits under this Agreement, as
the Warrant Certificate surrendered for such exchange or
transfer.
No service charge shall be made for any
exchange or transfer of Warrants, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in
connection with any such exchange or transfer, in
accordance with Section 2.2(f) hereof.
4.2 Treatment of Holders of Warrants. Every
Holder of a Warrant, by accepting the Warrant Certificate
evidencing the same, consents and agrees with the
Company, the Warrant Agent and with every other Holder of
Warrants of the same title that the Company and the
Warrant Agent may treat the Holder of a Warrant
Certificate (or, if the Warrant Certificate is not then
detachable, the Holder of the related Offered Security)
as the absolute owner of such Warrant for all purposes
and as the person entitled to exercise the rights
represented by such Warrant, any notice to the contrary
notwithstanding.
4.3 Cancellation of Warrant Certificates. In
the event that the Company shall purchase, redeem or
otherwise acquire any Warrants after the issuance
thereof, the Warrant Certificate or Certificates
evidencing such Warrants shall thereupon be delivered to
the Warrant Agent and be cancelled by it. The Warrant
Agent shall also cancel any Warrant Certificate
(including any mutilated Warrant Certificate) delivered
to it for exercise, in whole or in part, or for exchange
[if registered Warrants - - or transfer] [if Warrant
Certificates are issued in bearer form -- except that
Warrant Certificates delivered to the Warrant Agent in
exchange for Warrant Certificates of other denominations
may be retained by the Warrant Agent for reissue].
Warrant Certificates so cancelled shall be delivered by
the Warrant Agent to the Company from time to time, or
disposed of in accordance with the instructions of the
Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
5.1 Warrant Agent. The Company hereby
appoints _____________________ as Warrant Agent of the
Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions
set forth herein; and _______________ hereby accepts such
appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it hereby and
such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to
such powers and authority contained in any Warrant
Certificate are subject to and governed by the terms and
provisions hereof.
5.2 Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations set forth
herein upon the terms and conditions hereof, including
the following, to all of which the Company agrees and to
all of which the rights hereunder of the Holders shall be
subject:
(a) Compensation and Indemnification.
The Company agrees to promptly pay the Warrant Agent the
compensation set forth in Exhibit C hereto and to
reimburse the Warrant Agent for reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred by
the Warrant Agent in connection with the services
rendered hereunder by the Warrant Agent. The Company
also agrees to indemnify the Warrant Agent for, and to
hold it harmless against, any loss, liability or expense
(including the reasonable costs and expenses of defending
against any claim of liability) incurred without
negligence or bad faith on the part of the Warrant Agent
arising out of or in connection with its appointment as
Warrant Agent hereunder.
(b) Agent for the Company. In acting
under this Agreement and in connection with any Warrant
Certificate, the Warrant Agent is acting solely as agent
of the Company and does not assume any obligation or
relationship of agency or trust for or with any Holder.
(c) Counsel. The Warrant Agent may
consult with counsel satisfactory to it, and the written
advice of such 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 accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall
be protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in
reliance upon any notice, direction, consent,
certificate, affidavit, statement or other paper or
document reasonably believed by it to be genuine and to
have been presented or signed by the proper parties.
(e) Officer's Certificate. Whenever in
the performance of its duties hereunder the Warrant Agent
shall reasonably deem it necessary that any fact or
matter be proved or established by the Company prior to
taking, suffering or omitting any action hereunder, the
Warrant Agent may (unless other evidence in respect
thereof be herein specifically prescribed), in the
absence of bad faith on its part, rely upon a certificate
signed by the Chairman of the Board, a Vice-Chairman, the
President, a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the
Company (an "Officer's Certificate") delivered by the
Company to the Warrant Agent.
(f) Actions Through Agents. The Warrant
Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents,
and the Warrant Agent shall not be answerable or
accountable for any act, default, neglect or misconduct
of any such attorney or agent or for any loss to the
Company resulting from such neglect or misconduct;
provided, however, that reasonable care shall have been
exercised in the selection and continued employment of
such attorneys and agents.
(g) Certain Transactions. The Warrant
Agent, and any officer, director or employee thereof, may
become the owner of, or acquire any interest in, any
Warrant, with the same rights that he, she or it would
have if it were not the Warrant Agent, and, to the extent
permitted by applicable law, he, she or it may engage or
be interested in any financial or other transaction with
the Company and may serve on, or as depositary, trustee
or agent for, any committee or body of holders of
Underlying Securities or other obligations of the Company
as if it were not the Warrant Agent. Nothing in this
Agreement shall be deemed to prevent the Warrant Agent
from acting as Senior Indenture Trustee or Subordinated
Indenture Trustee.
(h) No Liability for Interest. The
Warrant Agent shall not be liable for interest on any
monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Warrant
Certificates, except as otherwise agreed with the
Company.
(i) No Liability for Invalidity. The
Warrant Agent shall incur no liability with respect to
the validity of this Agreement (except as to the due
execution hereof by the Warrant Agent) or any Warrant
Certificate (except as to the countersignature thereof by
the Warrant Agent).
(j) No Responsibility for Company
Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations
contained herein (except as to such statements or
recitals as describe the Warrant Agent or action taken or
to be taken by it) or in any Warrant Certificate (except
as to the Warrant Agent's countersignature on such
Warrant Certificate), all of which recitals and
representations are made solely by the Company.
(k) No Implied Obligations. The Warrant
Agent shall be obligated to perform only such duties as
are specifically set forth herein, and no other duties or
obligations shall be implied. The Warrant Agent shall
not be under any obligation to take any action hereunder
that may subject it to any expense or liability, the
payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent
shall not be accountable or under any duty or
responsibility for the use by the Company of any Warrant
Certificate countersigned by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement
or for the application by the Company of the proceeds of
the issuance or exercise of Warrants. The Warrant Agent
shall have no duty or responsibility in case of any
default by the Company in the performance of its
covenants or agreements contained herein or in any
Warrant Certificate or in case of the receipt of any
written demand from a Holder with respect to such
default, including, without limiting the generality of
the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise
or, except as provided in Section 6.3 hereof, to make any
demand upon the Company.
5.3 Resignation and Removal; Appointment of
Successor. (a) The Company agrees, for the benefit of
the Holders of the Warrants, that there shall at all
times be a Warrant Agent hereunder until all the Warrants
are no longer exercisable.
(b) The Warrant Agent may at any time
resign as such by giving written notice to the Company,
specifying the date on which such resignation shall
become effective; provided that such date shall not be
less than 90 days after the date on which such notice is
given, unless the Company agrees to accept a shorter
notice. The Warrant Agent may be removed at any time by
the filing with it of an instrument in writing signed on
behalf of the Company and specifying such removal and the
date when it shall become effective. Notwithstanding the
two preceding sentences, such resignation or removal
shall take effect only upon the appointment by the
Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized
and doing business under the laws of the United States of
America, and State thereof or the District of Columbia,
authorized under the laws of such jurisdiction to
exercise corporate trust powers and having at the time of
its appointment as Warrant Agent a combined capital and
surplus (as set forth in its most recent published report
of condition) of at least $50,000,000) and the acceptance
of such appointment by such successor Warrant Agent.
(c) In case at any time the Warrant Agent
shall resign, or shall be removed, or shall become
incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall file a petition seeking relief under
Title 11 of the United States Code, as now constituted or
hereafter amended, or under any other applicable federal
or state bankruptcy law or similar law, or make an
assignment for the benefit of its creditors, or consent
to the appointment of a receiver or custodian for all or
any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they
mature, or if a receiver, conservator or custodian for it
or for all or any substantial part of its property shall
be appointed, or if an order of any court shall be
entered for relief against it under the provisions of
Title 11 of the United States Code, as now constituted or
hereafter amended, or under any other applicable federal
or state bankruptcy or similar law, or if any public
officer shall have taken charge or control of the Warrant
Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, a successor
Warrant Agent, qualified as aforesaid, shall be appointed
by the Company by an instrument in writing, filed with
the successor Warrant Agent. Upon the appointment as
aforesaid of a successor Warrant Agent and acceptance by
the successor Warrant Agent of such appointment, the
Warrant Agent so superseded shall cease to be Warrant
Agent hereunder.
(d) Any successor Warrant Agent appointed
hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting
such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if
originally named as Warrant Agent hereunder, and such
predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, [if
registered Warrants - - the Warrant Register and] all
monies, securities and other property on deposit with or
held by such predecessor (together with any books and
records relating thereto), as Warrant Agent hereunder.
(e) The Company shall cause notice of the
appointment of any successor Warrant Agent to be [if
registered Warrants - - mailed by first-class mail,
postage, prepaid, to each Holder at its address appearing
on the Warrant Register or, in the case of Warrants that
are issued with Offered Securities and cannot then be
transferred separately therefrom, on the security
register of the Offered Securities] [if bearer warrants -
- published in an Authorized Newspaper (as defined in
Section 101 of the Senior Indenture and the Subordinated
Indenture) in The City of New York [and in such other
city or cities as may be specified by the Company] at
least twice within any seven-day period]. Such notice
shall set forth the name and address of the successor
Warrant Agent. Failure to give any notice provided for
in this Section 5.3(e), or any defect therein, shall not,
however, affect the legality or validity of the
appointment of the successor Warrant Agent.
(f) Any person into which the Warrant
Agent may be merged or converted, or any corporation with
which the Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a
party, or any corporation to which the Warrant Agent
shall sell or otherwise transfer all or substantially all
of its assets and business, shall be the successor
Warrant Agent under this Agreement without the execution
or filing of any paper, the giving of any notice to
Holders or any further act on the part of the parties
hereto, provided that such person be qualified as
aforesaid.
5.4 Office. The Company will maintain an
office or agency where Warrant Certificates may be
presented for exchange, [if registered Warrants - -
transfer] or exercise. The office initially designated
for this purpose shall be the corporate trust office of
the Warrant Agent at________________________.
ARTICLE VI
MISCELLANEOUS
6.1 Reclassification, Consolidation, Merger,
Sale or Conveyance. (a) With respect to any issuance of
Common Share Warrants, Preferred Stock Warrants, and/or
Depositary Share Warrants (collectively, the "Equity
Warrants"), in case any of the following shall occur
while any Equity Warrants are outstanding: (i) any
reclassification or changes of the outstanding Common
Stock, shares of Preferred Stock, and/or Depositary
Shares (collectively, the "Underlying Equity Securities")
(other than a change in par value, or from par value to
no par value, or as a result of a subdivision or
combination of the Underlying Equity Securities); or (ii)
any consolidation, merger or combination of the Company
with or into another corporation as a result of which
holders of Underlying Equity Securities shall be entitled
to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such
Underlying Equity Securities; or (iii) any sale,
conveyance, transfer or lease of the property or assets
of the Company as, or substantially as, an entirety to
any other entity as a result of which holders of
Underlying Equity Securities shall be entitled to receive
stock, securities or other property or assets (including
cash) with respect to or in exchange for such Underlying
Equity Securities; then the Company, or such successor or
assuming corporation, as the case may be, shall make
appropriate provision by amendment of this Agreement or
otherwise so that the holders of the Equity Warrants then
outstanding shall have the right at any time thereafter,
upon exercise of such Equity Warrants, to receive the
kind and amount of shares of stock and other securities
and property or assets receivable upon such
reclassification, change, consolidation, merger,
combination, sale, conveyance, transfer or lease as would
be received by a holder of the number of shares of
Underlying Equity Securities issuable upon exercise of
such Equity Warrant immediately prior to such
reclassification, change, consolidation, merger,
combination, sale, conveyance, transfer or lease, and, in
the case of a consolidation, merger, combination, sale,
conveyance, transfer or lease where the Company is not
the successor corporation, the successor or assuming
corporation shall succeed to and be substituted for the
Company with the same effect as if it had been named
herein as the Company, the Company shall thereupon be
relieved of any further obligation hereunder or under the
Equity Warrants, and the Company as the predecessor
corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of
the Company, any or all of the Equity Warrants issuable
hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver Underlying
Equity Securities in its own name, in fulfillment of its
obligations to deliver Underlying Equity Securities upon
exercise of the Equity Warrants. All the Equity Warrants
so issued shall in all respects have the same legal rank
and benefit under this Agreement as the Equity Warrants
theretofore or thereafter issued in accordance with the
terms of this Agreement as though all of such Equity
Warrants had been issued at the date of the execution
hereof. In any case of any such reclassification,
change, consolidation, merger, combination, sale,
conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made
in the Equity Warrants thereafter to be issued as may be
appropriate.
(b) With respect to any issuance of
Warrants to purchase Senior Debt Securities and/or
Subordinated Debt Securities (collectively, the "Debt
Warrants"), to the extent permitted in the Senior
Indenture and/or the Subordinated Indenture, the Company
may consolidate with, merge into or combine with another
corporation or other entity, or sell, convey, transfer or
lease all or substantially all of its properties and
assets to any other corporation or other entity. In case
of any such consolidation, merger, combination, sale,
conveyance, transfer or lease where the Company is not
the successor corporation, the successor or assuming
corporation shall succeed to and be substituted for the
Company with the same effect as if it had been named
herein as the Company, the Company shall thereupon be
relieved of any further obligation hereunder or under the
Debt Warrants, and the Company as the predecessor
corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor or
assuming corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of
the Company, any or all of the Debt Warrants issuable
hereunder which theretofore shall not have been signed by
the Company, and may execute and deliver the Senior Debt
Securities and/or Subordinated Debt Securities
purchasable through the exercise of the Debt Warrants
(collectively, the "Underlying Debt Securities") in its
own name, in fulfillment of its obligations to deliver
Underlying Debt Securities upon exercise of the Debt
Warrants. All the Debt Warrants so issued shall in all
respects have the same legal rank and benefit under this
Agreement as the Debt Warrants theretofore or thereafter
issued in accordance with the terms of this Agreement as
though all of such Debt Warrants had been issued at the
date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger,
combination, sale, conveyance, transfer or lease, such
changes in phraseology and form (but not in substance)
may be made in the Debt Warrants thereafter to be issued
as may be appropriate.
(c) The Warrant Agent may receive a
written opinion of legal counsel as conclusive evidence
that any such reclassification, change, consolidation,
merger, combination, sale, conveyance, transfer or lease,
as the case may be, complies with the provisions of this
Section 6.1.
6.2 Supplements and Amendments. (a) The
Company and the Warrant Agent may from time to time
supplement or amend this Agreement without the approval
of any Holder in order to cure any ambiguity, to correct
or supplement any provision contained herein that may be
defective or inconsistent with any other provision
herein, or to make any other provision in regard to
matters or questions arising hereunder that the Company
and the Warrant Agent may deem necessary or desirable and
that shall not adversely affect the interests of the
Holders. Every Holder of Warrants, whether issued before
or after any such supplement or amendment, shall be bound
thereby. Promptly after the effectiveness of any
supplement or amendment that affects the interests of the
Holders, the Company shall give notice thereof, as
provided in Section 5.3(e) hereof, to the Holders
affected thereby, setting forth in general terms the
substance of such supplement or amendment.
(b) The Company and the Warrant Agent may
modify or amend this Agreement and the Warrant
Certificates with the consent of the Holders of not fewer
than a majority in number of the then outstanding
unexercised Warrants affected by such modification or
amendment, for any purpose; provided, however, that no
such modification or amendment that shortens the period
of time during which the Warrants may be exercised, or
otherwise materially and adversely affects the exercise
rights of the Holders or reduces the percentage of
Holders of outstanding Warrants the consent of which is
required for modification or amendment of this Agreement
or the Warrants, may be made without the consent of each
Holder affected thereby.
6.3 Notices and Demands to the Company and
Warrant Agent. If the Warrant Agent shall receive any
notice or demand addressed to the Company by a Holder
pursuant to the provisions of this Agreement or a Warrant
Certificate (other than notices relating to the exchange
([if registered Warrants - - transfer] or exercise of
warrants), the Warrant Agent shall promptly forward such
notice or demand to the Company.
6.4 Addresses. Any communications from the
Company to the Warrant Agent with respect to this
Agreement shall be directed to _________________,
Attention: , any communications
from the Warrant Agent to the Company with respect to
this Agreement shall be directed to Deposit Guaranty
Corp., 210 East Capital Street, Jackson, Mississippi,
39205, Attention: [ ], with a copy to the Secretary
(or such other address as shall be specified in writing
by the Warrant Agent or by the Company), telephone number
(601) 354- and any communications from the Company
or the Warrant Agent to the Senior Indenture Trustee or
the Subordinated Indenture Trustee with respect to this
Agreement shall be directed to SunTrust Bank, Atlanta,
P.O. Box 4625, Atlanta 30302, Attention: .
The Company shall inform the Warrant Agent of any change
in the address of the Senior Indenture Trustee or the
Subordinated Indenture Trustee as soon as practicable
after it learns of any such change.
6.5 Applicable Law. The validity,
interpretation and performance of this Agreement and each
Warrant Certificate issued hereunder and of the
respective terms and provisions thereof shall be governed
by and construed in accordance with the laws of the State
of New York.
6.6 Delivery of Prospectus. The Company will
furnish to the Warrant Agent sufficient copies of a
prospectus or prospectuses, including any prospectus
supplements, relating to the Underlying Securities
deliverable upon exercise of any outstanding Warrants
(each a "Prospectus"), and the Warrant Agent agrees to
deliver a Prospectus to the Holder of a Warrant prior to
or concurrently with the delivery of the Underlying
Securities issued upon such exercise.
6.7 Obtaining Governmental Approvals. The
Company will take such action as may be necessary to
obtain and keep effective any and all permits, consents
and approvals of governmental agencies and authorities,
and will make all filings under federal and state
securities laws (including, without limitation, the
maintenance of the effectiveness of a registration
statement in respect of the Underlying Securities under
the Securities Act of 1933), as may be or become
requisite in connection with the issuance, sale, transfer
and delivery of Warrants and Warrant Certificates, the
exercise of Warrants and the issuance, sale and delivery
of Underlying Securities issued upon exercise of
Warrants.
6.8 Persons Having Rights Under Warrant
Agreement. Nothing in this Agreement expressed or
implied, and nothing that may be inferred from any of the
provisions hereof is intended or shall be construed to
confer upon or give to any person or corporation other
than the Company, the Warrant Agent and the Holders any
right, remedy or claim under or by reason of this
Agreement or any covenant, condition, stipulation,
promise or agreement herein; and all covenants,
conditions, stipulations, promises and agreements herein
shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and their respective
successors and the Holders.
6.9 Headings. The descriptive headings of the
several Articles and Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the
provisions hereof.
6.10 Counterparts. This Agreement may be
executed in one or more counterparts and, when a
counterpart has been executed by each party hereto, all
such counterparts taken together shall constitute one and
the same agreement.
6.11 Inspection of Agreement. A copy of this
Agreement shall be available during business hours at the
office of the Warrant Agent for inspection by a Holder.
The Warrant Agent may require such Holder to submit its
Warrant Certificate for inspection prior to making such
copy available.
6.12 Acceleration of Warrants by the
Corporation. (a) At any time on or after
_________________, the Corporation shall have the right
to accelerate any or all Warrants at any time by causing
them to expire at the Close of Business on the day next
preceding a specified date (the "Acceleration Date"), if
the Market Price (as hereinafter defined) of the
Underlying Security or Securities equals or exceeds
percent ( %) of the then effective warrant
exercise price, as if no changes in such Warrant Price
had been made pursuant to Section 2.3, on any twenty (20)
Trading Days (as hereinafter defined) within a period of
thirty (30) consecutive Trading Days ending no more than
five (5) Trading Days prior to the date on which the
Corporation gives notice to the Warrant Agent of its
election to accelerate the Warrants.
(b) "Market Price" for each Trading Day
shall be the last reported closing price regular way (or,
if no such price is reported, the average of the reported
closing bid and asked prices regular way) reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on
the New York Stock Exchange, or if the Underlying
Security is not listed or admitted to trading on such
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed or admitted to trading on the principal national
securities exchange on which the Underlying Security is
listed or admitted to trading, or if not listed or
admitted to trading on any national securities exchange,
the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ, or such other
system then in use, or if on any such date the Underlying
Securities are not quoted by any such organization, the
average of the closing bid and asked prices as furnished
by any New York Stock Exchange firm selected from time to
time by the Company for the purpose. For the purposes of
this Section 6.12, "Trading Day" shall be each Monday
through Friday other than any day on which securities are
not traded in the system or on the exchange that is the
principal market for the Common Stock, as determined by
the Board of Directors of the Company.
(c) In the event of an acceleration of
less than all of the Warrants, the Warrant Agent shall
select the Warrants to be accelerated by lot, pro rata or
in such other manner as it deems, in its discretion, to
be fair and appropriate.
(d) Notice of an acceleration specifying
the Acceleration Date shall be sent by mailing first
class, postage prepaid, to each registered Holder of a
Warrant Certificate representing a Warrant accelerated at
such Holder's address appearing on the [Warrant Register]
not more than sixty (60) days nor less than thirty (30)
days before the Acceleration Date. Such notice of an
acceleration also shall be given no more than twenty (20)
days, and no less than ten (10) days, prior to the
mailing of notice to registered Holders of Warrants
pursuant to this Section, by publication at least once in
a newspaper of general circulation in the City of New
York, New York.
(e) Any Warrant accelerated may be
exercised until 3:30 P.M. New York City time on the
business day next preceding the Acceleration Date. The
warrant exercise price shall be payable as provided in
Section 2.2.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement 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.
DEPOSIT GUARANTY CORP.
[Seal]
By
Attest: Name:
Title:
Name:
Title:
[WARRANT AGENT]
[Seal]
By
Attest: Name:
Title:
Name:
Title:
Exhibit A to Warrant Agreement
[FORM OF REGISTERED WARRANT CERTIFICATE]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE
WARRANT AGENT AS PROVIDED HEREIN
[Form of Legend if Prior to __________ this
Offered Securities with Warrant Certificate cannot
Warrants which are not be transferred or exchanged
immediately detachable. unless attached to a [Title of
Offered Securities].]
[Form of Legend if Prior to __________
Warrants are not Warrants evidenced by
immediately exercisable. this Warrant Certificate
cannot be exercised.]
No. CUSIP No. [________]
WARRANT CERTIFICATE
representing
[up to _________] Warrants
Expiring [_______________________]
DEPOSIT GUARANTY CORP.
This certifies that [___________________] or
registered assigns is the registered holder of [________]
Warrants (the "Warrants") or such lesser amount as is
indicated in the records of [name of Warrant Agent], as
Warrant Agent. Each Warrant entitles the beneficial
owner thereof, subject to the provisions contained herein
and in the Warrant Agreement referred to below, [subject
to the registered owner qualifying as a "Holder" of this
Warrant Certificate, as hereinafter defined]* to
purchase, at any time [after 5:00 P.M., New York City
time, on , 19 and on or before 5:00 P.M.,
New York City time, on , 19__], [aggregate
principal amount or number of shares of [title of
Underlying Securities]] of Deposit Guaranty Corp. (the
"Company") on the following basis: during the period
from ___________, 19__ through and including
_____________, 19__ the exercise price of each Warrant
will be _______; during the period from ______, 19 __,
through and including ________, 19__, the exercise price
of each Warrant will be ________ (the "Warrant Price"),
subject to such adjustments as are provided in Section
2.3 of the Warrant Agreement (as defined below). Other
than as provided in Section 2.3 of the Warrant Agreement,
no adjustment shall be made for any dividends on any
Common Stock issuable upon exercise of any Warrant. The
Holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back
hereof and by paying in full [in lawful money of the
United States of America] [in cash or by certified check
or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in [immediately available]
[next day] Funds, the Warrant Price for each Warrant
___________________
* Include if Warrants are issued with Offered
Securities which are not immediately detachable.
exercised to the Warrant Agent (as hereinafter defined)
and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent], or its
successor as warrant agent, which is, on the date hereof,
at the address specified on the reverse hereof, and upon
compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter
defined).
The term "Holder" as used herein shall mean
[**, prior to (the
"Detachable Date"), the registered owner of the Company's
(title of Offered Securities] (the "Offered Securities")
to which this Warrant Certificate is initially attached,
and after such Detachable Date,] the person in whose name
at the time this Warrant Certificate shall be registered
upon the books to be maintained by the Warrant Agent for
that purpose. The Warrants may be exercised at or prior
to [ P.M.], New York City time, on any New York
Business Day from their date of issuance until [__ P.M.],
New York City time, on [ , 19__] (the
"Expiration Date"). [Not fewer than [ ] Warrants may
be exercised by or on behalf of any one Holder on any one
day.] The term "New York Business Day," as used herein,
means any day other than a Saturday or Sunday or a day on
which commercial banks in The City of New York are
required or authorized to be closed.
This Warrant Certificate is issued under and in
accordance with the Warrant Agreement, dated as of [
, 19 ] (the "Warrant Agreement"), between the
Company and the Warrant Agent, and is subject to the
terms and provisions contained in the Warrant Agreement,
to all of which terms and provisions all Holders of the
Warrants represented by Warrant Certificates consent by
acceptance hereof. Copies of the Warrant Agreement are
on file at the principal corporate trust office of the
Warrant Agent in New York City.
Capitalized terms included herein but not
defined herein have the meanings assigned thereto in the
Warrant Agreement.
[***Prior to , 19 ,
this Warrant Certificate may be exchanged or transferred
only together with the Offered Securities to which this
Warrant Certificate was initially attached, and only for
the purpose of effecting, or in conjunction with, an
exchange or transfer of such Offered Security. After
such date, this Warrant may be registered when this
Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent [or at __________________] by
the registered owner or such owner's assigns, in person
or by an attorney duly authorized in writing, in the
_______________________
** Include if Warrants are issued with Offered
Securities which are not immediately detachable.
*** Include if Warrants are issued with Offered
Securities which are not immediately detachable.
manner and subject to the limitations provided in the
Warrant Agreement.
Except as provided in the immediately preceding
paragraph, after countersignature by the Warrant Agent
and prior to the expiration of this Warrant Certificate,
this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent [or at
_______] for Warrant Certificates representing the same
aggregate number of Warrants.]
[****Transfer of this Warrant may be registered
when this Warrant Certificate is surrendered at the
corporate trust office of the Warrant Agent by the
registered owner or such owner's assigns, in person or by
an attorney duly authorized in writing, in the manner and
subject to the limitations provided in the Warrant
Agreement.
After countersignature by the Warrant Agent and
prior to the expiration of this Warrant Certificate, this
Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or at
] for Warrant Certificates representing
the same number of Warrants.]
This Warrant Certificate shall not entitle the
Holder hereof to any of the rights of a holder of
Underlying Securities, including, without limitation, the
right to receive the payment of principal of, or premium,
if any, on or interest, dividends or distributions of any
kind, if any on, Underlying Securities, the right to
exercise any voting rights or the right to enforce any of
the covenants in the Senior Indenture or Subordinated
Indenture, if applicable.
Subject to the terms of the Warrant Agreement,
upon due presentment for registration of transfer of this
Warrant Certificate at the principal corporate trust
office of the Warrant Agent in New York City or at any
other office indicated in the Prospectus Supplement
accompanying the sale of this Warrant, the Company shall
execute and the Warrant Agent shall countersign and
deliver in the name of the designated transferee a new
Warrant Certificate of like tenor and representing a like
number of unexercised Warrants as evidenced by this
Warrant Certificate at the time of such registration of
transfer which shall be issued to the designated
transferee in exchange for this Warrant Certificate,
subject to the limitations provided in the Warrant
Agreement, without charge.
This Warrant Certificate and the Warrant
Agreement are subject to amendment as provided in the
Warrant Agreement.
_____________________
**** Include if Warrants are issued alone or with Offered
Securities which are immediately detachable.
This Warrant Certificate shall not be valid or
obligatory for any purpose until countersigned by the
Warrant Agent.
The validity, interpretation and performance of
this Warrant Certificate and the terms and provisions
hereof shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated as of [ ].
DEPOSIT GUARANTY CORP.
By:
[title]
[SEAL]
Attest:
[title]
Countersigned on the date
above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By:
[title]
Exhibit B to Warrant Agreement
Form of Warrant Exercise Notice
[NAME OF WARRANT AGENT], as Warrant Agent
Attention:
[Address]
[Facsimile: ]
[Telephone: ]
Telex: ]
Re: Exercise of Deposit Guaranty Corp. Warrants Expiring
[ ] ["Warrants"]
The undersigned hereby irrevocably elects to
exercise Warrants, evidenced by
this Warrant Certificate, to purchase [aggregate amount
or number of shares of [title of Underlying Securities]]
of Deposit Guaranty Corp. and represents that the
undersigned has tendered payment for such [title of
Underlying Securities] [in lawful money of the United
States of America] [in cash or by certified check or
official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in [immediately available]
[next day] funds to the order of Deposit Guaranty Corp.,
c/o [name of Warrant Agent], [ ,
New York, New York ], in the amount of
in accordance with the terms hereof. The undersigned
requests that [aggregate principal amount or number of
shares of [title of Underlying Securities]] be in [fully
registered form] [in the form required under the Senior
Indenture or the Subordinated Indenture, if applicable,
or in the form otherwise required] in the authorized
denominations, registered in such names and delivered all
as specified in accordance with the instructions set
forth below.
If the number of Warrants exercised is less
than all of the Warrants evidenced hereby, the
undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be
issued and delivered to the undersigned unless otherwise
specified in the instructions below.
Dated: Name
Address
(Insert social security or
other identifying number
of holder of Warrant)
Signature Guaranteed Signature
(Signature must
conform in all
respects to name of
holder of Warrant as
specified on the
Warrant Certificate
and must bear a
signature guarantee
by a bank, trust
company or member
broker of the New
York, Midwest or
Pacific Stock
Exchange)
The Warrant(s) evidenced hereby may be
exercised at the following addresses:
By hand at
By mail at
[Instructions as to form and delivery of
[Underlying Securities] and, if applicable, Warrant
Certificates evidencing unexercised Warrants -- complete
as appropriate.]
Exhibit C to Warrant Agreement
[Compensation of Warrant Agent]
TABLE OF CONTENTS
Page
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY
OF WARRANT CERTIFICATES . . . . . . . . . . . . . . . 5
1.1 Issuance of Warrants . . . . . . . . . . 5
1.2 Form and Execution of Warrant
Certificates . . . . . . . . . . . . . . 6
1.3 Issuance and Delivery of Warrant
Certificates . . . . . . . . . . . . . . 7
1.4 Temporary Warrant Certificates . . . . . 8
1.5 Payment of Taxes . . . . . . . . . . . . 8
1.6 Definition of Holder . . . . . . . . . . 8
ARTICLE II
DURATION AND EXERCISE OF WARRANTS . . . . . . . . . . 9
2.1 Duration of Warrants . . . . . . . . . . 9
2.2 Exercise of Warrants . . . . . . . . . . 10
2.3 Common Share Warrant Adjustments . . . . 11
2.4 Reservation of Shares . . . . . . . . . . 19
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANTS . . . . . . . . . . . . . . . . . . . . . 19
3.1 No Rights as Holder of Underlying
Security Conferred by Warrants or
Warrant Certificates . . . . . . . . . . 19
3.2 Lost, Stolen, Destroyed or Mutilated
Warrant . . . . . . . . . . . . . . . . . 19
3.3 Holder of Warrants May Enforce Rights . . 20
ARTICLE IV
EXCHANGE AND TRANSFER OF WARRANTS . . . . . . . . . . 20
4.2 Treatment of Holders of Warrants. . . . 22
4.3 Cancellation of Warrant Certificates. . 22
ARTICLE V
CONCERNING THE WARRANT AGENT . . . . . . . . . . . . 22
5.1 Warrant Agent. . . . . . . . . . . . . 22
5.2 Conditions of Warrant Agent's
Obligations. . . . . . . . . . . . . . 23
5.3 Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . 26
5.4 Office. . . . . . . . . . . . . . . . . 28
ARTICLE VI
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 28
6.1 Reclassification, Consolidation, Merger,
Sale or Conveyance. . . . . . . . . . . 28
6.2 Supplements and Amendments. . . . . . . 31
6.3 Notices and Demands to the Company and
Warrant Agent. . . . . . . . . . . . . . 31
6.4 Addresses. . . . . . . . . . . . . . . . 31
6.5 Applicable Law. . . . . . . . . . . . . 32
6.6 Delivery of Prospectus. . . . . . . . . 32
6.7 Obtaining Governmental Approvals. . . . 32
6.8 Persons Having Rights Under Warrant
Agreement. . . . . . . . . . . . . . . . 32
6.9 Headings. . . . . . . . . . . . . . . . . 33
6.10 Counterparts . . . . . . . . . . . . . . 33
6.12 Acceleration of Warrants by the
Corporation. . . . . . . . . . . . . . . 33
DEPOSIT AGREEMENT, dated as of , 199
, among DEPOSIT GUARANTY CORP., a Mississippi
corporation, (the "Company"), , a
corporation (the Depositary"), and the holders from time
to time of the Receipts described herein.
WHEREAS, it is desired to provide, as
hereinafter set forth in this Deposit Agreement, for the
deposit of shares of preferred stock, no par value, of
Deposit Guaranty Corp. with the Depositary for the
purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts evidencing Depositary
Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially
in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the
promises contained herein, the parties hereto agree as
follows:
ARTICLE I
Definitions
The following definitions shall, for all
purposes, unless otherwise indicated, apply to the
respective terms used in this Deposit Agreement:
"Certificate" shall mean the Certificate of
Designation filed with the Secretary of State of the
State of Mississippi establishing the Stock as a series
of preferred stock of the Company.
"Company" shall mean Deposit Guaranty Corp., a
Mississippi corporation, and its successors.
"Deposit Agreement" shall mean this Deposit
Agreement, as amended or supplemented from time to time.
"Depositary" shall mean , and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary
Shares, each representing one-tenth of a share of Stock
and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent
appointed by the Depositary pursuant to Section 7.5.
"Depositary's Office" shall mean the principal
office of the Depositary, at which at any particular time
its depositary receipt business shall be administered.
"Preferred Stock" means any stock of any class
or series of the Company which has a preference over
Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and
which is not mandatorily redeemable or repayable by the
Company, or redeemable or repayable at the option of the
holder of such stock.
"Receipt" shall mean one of the Depositary
Receipts, substantially in the form set forth as Exhibit
A hereto, issued hereunder, whether in definitive or
temporary form and evidencing the number of Depositary
Shares held of record by the record holder of such
Depositary Shares.
"record holder" or "holder" as applied to a
Receipt shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for
such purpose.
"Registrar" shall mean the Depositary or such
other bank or trust company which shall be appointed to
register ownership and transfers of Receipts as herein
provided.
"Securities Act" shall mean the Securities Act
of 1933, as amended.
"Stock" shall mean shares of the Company's [
] Preferred Stock, no par value, $ stated value
per share.
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.1. Form and Transfer of Receipts.
Definitive Receipts shall be engraved or printed or
lithographed on steel-engraved borders, with appropriate
insertions, modifications and omissions, as hereinafter
provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the
Company or any holder of Stock, as the case may be,
delivered in compliance with Section 2.2, shall execute
and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in
lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If
temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of
the temporary Receipts at an office described in the
penultimate paragraph of Section 2.2, without charge to
the holder. Upon surrender for cancellation of any one
or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as
represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Company's
expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects
be entitled to the same benefits under this Agreement,
and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by
the manual signature of a duly authorized officer of the
Depositary; provided, that such signature may be a
facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts
are countersigned by a duly authorized officer of the
Registrar. No Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed
manually by a duly authorized officer of the Depositary
or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or
facsimile signature of a duly authorized officer of the
Depositary and countersigned by a duly authorized officer
of such Registrar. The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter
provided.
Receipts shall be in denominations of any
number of whole Depositary Shares.
Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals
or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or any
regulation thereunder or with the rules and regulations
of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to
conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which
any particular Receipts are subject.
Title to Depositary Shares evidenced by a
Receipt, which is properly endorsed or accompanied by a
properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the
case of a negotiable instrument; provided, however, that
until transfer of a Receipt shall be registered on the
books of the Depositary as provided in Section 2.3, the
Depositary may, notwithstanding any notice to the
contrary, treat the record holder thereof at such time as
the absolute owner thereof for the purpose of determining
the person entitled to distributions of dividends or
other distributions or to any notice provided for in this
Deposit Agreement and for all other purposes.
SECTION 2.2. Deposit of Stock; Execution and
Delivery of Receipts in Respect Thereof. Subject to the
terms and conditions of this Deposit Agreement, the
Company or any holder of Stock may from time to time
deposit shares of the Stock under this Deposit Agreement
by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly
endorsed or accompanied, if required by the Depositary,
by a duly executed instrument of transfer or endorsement,
in form satisfactory to the Depositary, together with all
such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit
Agreement, and together with a written order of the
Company or such holder, as the case may be, directing the
Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order a
Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Deposited Stock shall be held by the Depositary
at the Depositary's Office or at such other place or
places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate
or certificates for Stock deposited in accordance with
the provisions of this Section, together with the other
documents required as above specified, and upon
recordation of the Stock on the books of the Company in
the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver, to or upon
the order of the person or persons named in the written
order delivered to the Depositary referred to in the
first paragraph of this Section, a Receipt or Receipts
for the number of Depositary Shares representing the
Stock so deposited and registered in such name or names
as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or
Receipts at the Depositary's Office or such other
offices, if any, as the Depositary may designate.
Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
SECTION 2.3. Registration of Transfer of
Receipts. Subject to the terms and conditions of this
Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by duly
authorized attorney, properly endorsed or accompanied by
a properly executed instrument of transfer. Thereupon,
the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares
as those evidenced by the Receipt or Receipts surrendered
and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.4. Split-ups and Combinations of
Receipts; Surrender of Receipts and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to
the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or
Receipts in the authorized denomination or denominations
requested, evidencing the aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts
representing any number of whole shares of Stock may
withdraw the Stock and all money and other property, if
any, represented thereby by surrendering such Receipt or
Receipts, at the Depositary's Office or at such other
offices as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder or to the person
or persons designated by such holder as hereinafter
provided, the number of whole shares of Stock and all
money and other property, if any, represented by the
Receipt or Receipts so surrendered for withdrawal, but
holders of such whole shares of Stock will not thereafter
be entitled to deposit such Stock hereunder or to receive
Depositary Shares therefor. If a Receipt delivered by
the holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares
in excess of the number of Depositary Shares representing
the number of whole shares of Stock to be so withdrawn,
the Depositary shall at the same time, in addition to
such number of whole shares of Stock and such money and
other property, if any, to be so withdrawn, deliver to
such holder, or upon his order, a new Receipt evidencing
such excess number of Depositary Shares. Delivery of the
Stock and money and other property being withdrawn may be
made by the delivery of such certificates, documents of
title and other instruments as the Depositary may deem
appropriate.
If the Stock and the money and other property
being withdrawn are to be delivered to a person or
persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such
holders shall execute and deliver to the Depositary a
written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares
of Stock be properly endorsed in blank or accompanied by
a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other
property, if any, represented by Receipts surrendered for
withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk
and expense of the holder surrendering such Receipt or
Receipts and for the account of the holder thereof, such
delivery may be made at such other place as may be
designated by such holder.
SECTION 2.5. Limitations on Execution and
Delivery, Transfer, Surrender and Exchange of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination,
surrender or exchange of any Receipt, the Depositary, any
of the Depositary's Agents or the Company may require
payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have
made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt
pursuant to Section 5.7, may require the production of
evidence satisfactory to it as to the identity and
genuineness of any signature and may also require
compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with
the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the
delivery of Receipts against Stock may be suspended, the
registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of
outstanding Receipts may be suspended (i) during any
period when the register of stockholders of the Company
is closed or (ii) if any such action is deemed necessary
or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time
because of any requirement of law or of any government or
governmental body or commission or under any provision of
this Deposit Agreement.
SECTION 2.6. Lost Receipts, etc. In case any
receipt shall be mutilated, destroyed, lost or stolen,
the Depositary in its discretion may execute and deliver
a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of
and in substitution for such destroyed, lost or stolen
Receipt, upon (i) the filing by the holder thereof with
the Depositary of evidence satisfactory to the Depositary
of such destruction or loss or theft of such Receipt, of
the authenticity thereof and of his or her ownership
thereof and (ii) the furnishing of the Depositary
indemnification (which may include posting an
indemnification bond) satisfactory to it.
SECTION 2.7. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the
Depositary or any Depositary's Agent shall be cancelled
by the Depositary. Except as prohibited by applicable
law or regulation, the Depositary is authorized to
destroy all Receipts so cancelled.
SECTION 2.8. Redemption of Stock. Whenever
the Company shall be permitted and shall elect to redeem
shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed to in
writing with the Depositary) give or cause to be given to
the Depositary not less than 30 days' and not more than
60 days' notice of the date of such proposed redemption
or exchange of Stock and of the number of such shares
held by the Depositary to be so redeemed and the
applicable redemption price, as set forth in the
Certificate, which notice shall be accompanied by a
certificate from the Company stating that such redemption
of Stock is in accordance with the provisions of the
Certificate. On the date of such redemption, provided
that the Company shall then have paid or caused to be
paid in full to the Depositary the redemption price of
the Stock to be redeemed, plus an amount equal to any
accrued and unpaid dividends thereon to the date fixed
for redemption, in accordance with the provisions of the
Certificate, the Depositary shall redeem the number of
Depositary Shares representing such Stock. The
Depositary shall mail notice of the Company's redemption
of Stock and the proposed simultaneous redemption of the
number of Depositary Shares representing the Stock to be
redeemed by first-class mail, postage prepaid, not less
than 10 and not more than 60 days prior to the date fixed
for redemption of such Stock and Depositary Shares (the
"Redemption Date") to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, at
the address of such holders as they appear on the records
of the Depositary; but neither failure to mail any such
notice of redemption of Depositary Shares to one or more
such holders nor any defect in any notice of redemption
of Depositary Shares to one or more such holders shall
affect the sufficiency of the proceedings for redemption
as to the other holders. Each such notice shall state:
(i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be
redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing
Depositary Shares are to be surrendered for payment of
the redemption price; and (v) that dividends in respect
of the Stock represented by the Depositary Shares to be
redeemed will cease to accrue on such Redemption Date.
In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so
redeemed shall be selected by the Depositary by lot or
pro rata (as nearly as may be) or by any other method, in
each case, as determined by the Depositary in its sole
discretion to be equitable.
Notice having been mailed by the Depositary as
aforesaid, from and after the Redemption Date (unless the
Company shall have failed to provide the funds necessary
to redeem the Stock evidenced by the Depositary Shares
called for redemption) (i) dividends on the shares of
Stock so called for redemption shall cease to accrue from
and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to
be outstanding, (iii) all rights of the holders of
Receipts evidencing such Depositary Shares (except the
right to receive the redemption price) shall, to the
extent of such Depositary Shares, cease and terminate,
and (iv) upon surrender in accordance with such
redemption notice of the Receipts evidencing any such
Depositary Shares called for redemption (properly
endorsed or assigned for transfer, if the Depositary or
applicable law shall so require), such Depositary Shares
shall be redeemed by the Depositary at a redemption price
per Depositary Share equal to one-tenth of the redemption
price per share plus all money and other property, if
any, represented by such Depositary Shares, including all
amounts paid by the Company in respect of dividends which
on the Redemption Date have accumulated on the shares of
Stock to be so redeemed and have not theretofore been
paid.
If fewer than all of the Depositary Shares
evidenced by a Receipt are called for redemption, the
Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the
redemption payment, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not
called for redemption.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.1. Filing Proofs, Certificates and
Other Information. Any holder of a Receipt may be
required from time to time to file such proof of
residence, or other matters or other information, to
execute such certificates and to make such
representations and warranties as the Depositary or the
Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or
delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal or conversion
of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any
dividend or other distribution or the sale of any rights
or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.2. Payment of Taxes or Other
Governmental Charges. Holders of Receipts shall be
obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.7.
Registration of transfer of any Receipt or any withdrawal
of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such
Receipt may be refused until any such payment due is
made, and any dividends, interest payments or other
distributions may be withheld or any part of or all the
Stock or other property represented by the Depositary
Shares evidenced by such Receipt and not theretofore sold
may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder
prior to such sale), and such dividends, interest
payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges
or expenses, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.3. Warranty as to Stock. The
Company hereby represents and warrants that the Stock,
when issued, will be duly authorized, validly issued,
fully paid and nonassessable, subject to Mississippi
General Laws. Such representation and warranty shall
survive the deposit of the Stock and the issuance of
Receipts.
SECTION 3.4. Warranty as to Receipts. The
Company hereby represents and warrants that the Receipts,
when issued, will represent legal and valid interests in
the Stock. Such representation and warranty shall
survive the deposit of the Stock and the issuance of
Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.1. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on Stock, the Depositary shall, subject to
Section 3.1 and 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4
such amounts of such dividend or distribution as are, as
nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts
held by such holders; provided, however, that in case the
Company or the Depositary shall be required to withhold
and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account
of taxes, the amount made available for distribution or
distributed in respect of Depositary Shares shall be
reduced accordingly. The Depositary shall distribute or
make available for distribution, as the case may be, only
such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction
of one cent. Any balance not so distributable shall be
returned by the Depositary to the Company and shall be
added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of
Receipts then outstanding.
SECTION 4.2. Distributions Other than Cash,
Rights, Preferences or Privileges. Whenever the
Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the
Depositary shall, subject to Sections 3.1 and 3.2,
distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.4 such amounts of the
securities or property received by it as are, as nearly
as practicable, in proportion to the respective numbers
of Depositary Shares evidenced by the Receipts held by
such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such
record holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold
an amount on account of taxes) the Depositary deems,
after consultation with the Company, such distribution
not to be feasible, the Depositary may, with the approval
of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such
distribution, including the sale (at public or private
sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale
shall, subject to Sections 3.1 and 3.2, be distributed or
made available for distribution, as the case may be, by
the Depositary to record holders of Receipts as provided
by Section 4.1 in the case of a distribution received in
cash. The Company shall not make any distribution of
such securities or property to the Depositary and the
Depositary shall not make any distribution of such
securities or property to the holders of Receipts unless
the Company shall have provided an opinion of counsel
stating that such securities or property have been
registered under the Securities Act or do not need to be
registered in connection with such distributions.
SECTION 4.3. Subscription Rights, Preferences
or Privileges. If the Company shall at any time offer or
cause to be offered to the persons in whose names Stock
is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or
privileges shall in each such instance be made available
by the Depositary to the record holders of Receipts in
such manner as the Depositary may determine, either by
the issue to such record holders of warrants representing
such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its
discretion with the approval of the Company; provided,
however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary
determines that it is not lawful or (after consultation
with the Company) not feasible to make such rights,
preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (ii)
if and to the extent so instructed by holders of Receipts
who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with
approval of the Company, in any case where the Depositary
has determined that it is not feasible to make such
rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences
or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at
such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject
to Sections 3.1 and 3.2, be distributed by the Depositary
to the record holders of Receipts entitled thereto as
provided by Section 4.1 in the case of a distribution
received in cash.
If registration under the Securities Act of the
securities to which any rights, preferences or privileges
relate is required in order for holders of Receipts to be
offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with
the Depositary that it will file promptly a registration
statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use
its best efforts and take all steps available to it to
cause such registration statement to become effective
sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no
event shall the Depositary make available to the holders
of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and
until such registration statement shall have become
effective, or unless the offering and sale of such
securities to such holders are exempt from registration
under the provisions of the Securities Act, and the
Company shall have provided to the Depositary an opinion
of counsel to such effect.
If any other action under the laws of any
jurisdiction or any governmental or administrative
authorization, consent or permit is required in order for
such rights, preferences or privileges to be made
available to holders of Receipts, the Company agrees with
the Depositary that the Company will use its reasonable
best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or
privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4. Notice of Dividends, etc.; Fixing
Record Date for Holders of Receipts. Whenever any cash
dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or if
rights, preferences or privileges shall at any time be
offered, with respect to Stock, or whenever the
Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders
of Stock are entitled to notice, or whenever the
Depositary and the Company shall decide it is
appropriate, the Company shall in each such instance fix
a record date for the determination of the holders of
Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions
for the exercise of voting rights at any such meeting, or
who shall be entitled to notice of such meeting or for
any other appropriate reasons.
SECTION 4.5. Voting Rights. Upon receipt of
notice of any meeting at which the holders of Stock are
entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of
Receipts a notice which shall contain (i) such
information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any
applicable restrictions, instruct the Depositary as to
the exercise of the voting rights pertaining to the
amount of Stock represented by their respective
Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the
Company) and a brief statement as to the manner in which
such instructions may be given. Upon the written request
of the holders of Receipts on the relevant record date,
the Depositary shall endeavor insofar as practicable to
vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum
number of whole shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The
Company hereby agrees to take all reasonable action which
may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary
will not vote (but, at its discretion, may appear at any
meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the
extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.6. Changes Affecting Deposited
Securities and Reclassifications, Recapitalizations, etc.
Upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock,
or upon any recapitalization, reorganization, merger or
consolidation affecting the Company or to which it is a
party, the Depositary may in its discretion with the
approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the
Depositary may deem equitable, (i) make such adjustments
as are certified by the Company in the fraction of an
interest represented by one Depositary Share in one share
of Stock as may be necessary fully to reflect the effects
of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of
such recapitalization, reorganization, merger or
consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited
securities so received in exchange for or upon conversion
or in respect of such Stock. In any such case the
Depositary may in its discretion, with the approval of
the Company, execute and deliver additional Receipts or
may call for the surrender of all outstanding Receipts to
be exchanged for new Receipts specifically describing
such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have
the right from and after the effective date of any such
change in par or stated value, split-up, combination or
other reclassification of the Stock or any such
recapitalization, reorganization, merger or consolidation
to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock
represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other
securities and property and cash into which the Stock
represented by such Receipts might have been converted or
for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of
such transaction.
SECTION 4.7. Delivery of Reports. The
Depositary shall furnish to holders of Receipts any
reports and communications received from the Company
which are received by the Depositary as the holder of
Stock.
SECTION 4.8. List of Receipt Holders.
Promptly upon request from time to time by the Company,
the Depositary shall furnish to it a list, as of the most
recent practicable date, of the names, addresses and
holdings of Depositary Shares of all record holders of
Receipts.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.1. Maintenance of Offices, Agencies
and Transfer Books by the Depositary; Registrar. Upon
execution of this Deposit Agreement, the Depositary shall
maintain at the Depositary's office, facilities for the
execution and delivery, registration and registration of
transfer, surrender and exchange of Receipts, and at the
offices of the Depositary's Agents, if any, facilities
for the delivery, registration of transfer, surrender and
exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the
Depositary's Office for the registration and registration
of transfer of Receipts, which books at all reasonable
times shall be open for inspection by the record holders
of Receipts; provided that any such holder requesting to
exercise such right shall certify to the Depositary that
such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of
Depositary Shares evidenced by the Receipts.
The Depositary may close such books, at any
time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.
The Depositary may, with the approval of the
Company, appoint a Registrar for registration of the
Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby
or the Stock represented by such Depositary Shares shall
be listed on one or more national stock exchanges, the
Depositary will appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary
Shares in accordance with any requirements of such
exchange. Such Registrar may be the Depositary if so
permitted by the requirements of any such exchange. Such
Registrar may be removed and a substitute registrar
appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such
Depositary Shares or such stock are listed on one or more
other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the
delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary
Shares or such stock as may be required by law or
applicable stock exchange regulation.
SECTION 5.2. Prevention of or Delay in
Performance by the Depositary, the Depositary's Agents,
the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company
shall incur any liability to any holder of any Receipt if
by reason of any provision of any present or future law,
or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of
the Depositary, the Depositary's Agent or the Registrar,
by reason of any provision, present or future, of the
Company's Restated Certificate of Incorporation, as
amended (including the Certificate) or by reason of any
act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be
prevented, delayed or forbidden from, or subjected to any
penalty on account of, doing or performing any act or
thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur
liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this
Deposit Agreement shall provide shall or may be done or
performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this
Deposit Agreement except, in the case of any such
exercise or failure to exercise discretion not caused as
aforesaid, if caused by the negligence or willful
misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.3. Obligation of the Depositary, the
Depositary's Agents, the Registrar and the Company.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company assumes any obligation or shall
be subject to any liability under this Deposit Agreement
to holders of Receipts other than for its negligence,
willful misconduct or bad faith. The Company shall
indemnify the Depositary for, and 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 its agency under this Deposit Agreement,
including the costs and expenses of defending itself
against any claim or liability in connection with its
exercise or performance of any of its duties under this
Deposit Agreement. Anything in this Deposit Agreement to
the contrary notwithstanding, in no event shall the
Depositary be liable for special, indirect or
consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the
Depositary has been advised of the likelihood of such
loss or damage and regardless of the form of the action.
Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company shall be under
any obligation to appear in, prosecute or defend any
action, suit or other preceding in respect of the Stock,
the Depositary Shares or the Receipts which in its
opinion may involve it in expense or liability unless
indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company shall be liable
for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants,
or information from any person presenting Stock for
deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be
protected in acting upon any written notice, request,
direction or other document believed by it to be genuine
and to have been signed or presented by the proper party
or parties.
The Depositary shall not be responsible for any
failure to carry out any instruction to vote and of the
shares of stock or for the manner or effect of any such
vote made, as long as any such action or non-action is in
good faith. The Depositary undertakes, and any Registrar
shall be required to undertake, to perform such duties
and only such duties as are specifically set forth in
this Agreement, and no implied covenants or obligations
shall be read into this Agreement against the Depositary
or any Registrar. This Section 5.3 shall survive any
termination of this Agreement and any succession of any
Depositary. The Depositary, the Depositary's Agents, and
any Registrar may own and deal in any class of securities
of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates.
SECTION 5.4. Resignation and Removal of the
Depositary; Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary hereunder
by delivering notice of its election to do so to the
Company, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance
of such appointment as hereinafter provided.
The Depositary may at any time be removed by
the Company by notice of such removal delivered to the
Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall,
within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a
successor Depositary, which shall be a bank or trust
company having its principal office in the United States
of America and having a combined capital and surplus of
at least $50,000,000. If no successor Depositary shall
have been so appointed and have accepted appointment
within 60 days after delivery of such notice, the
resigning or removed Depositary may petition any court of
competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and
deliver to its predecessor and to the Company an
instrument in writing accepting its appointment
hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully
vested with all the rights, powers, duties and
obligations of its predecessor and for all purposes shall
be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver
an instrument transferring to such successor all rights
and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and
interest in the Stock and any moneys or property held
hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding
Receipts and such records, books and other information in
its possession relating thereto. Any successor
Depositary shall promptly mail notice of its appointment
to the record holders of Receipts.
Any corporation into or with which the
Depositary may be merged, consolidated or converted shall
be the successor of such Depositary without the execution
or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor
Depositary may authenticate the Receipts in the name of
the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.5. Corporate Notices and Reports.
The Company agrees that it will transmit to the record
holders of Receipts, in each case at the addresses
furnished to it pursuant to Section 4.8, all notices and
reports (including without limitation financial
statements) required by law or by the rules of any
national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed, to be
furnished to the record holders of Receipts or otherwise
determine to furnish. Such transmission will be at the
Company's expense.
SECTION 5.6. Indemnification by the Company.
The Company shall indemnify the Depositary, any
Depositary's Agent and any Registrar against, and hold
each of them harmless from, any loss, liability or
expense (including the reasonable costs and expenses of
defending itself) which may arise out of acts performed
or omitted in connection with this Agreement and the
Receipts by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent),
except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts
of any such person or persons. The obligations of the
Company set forth in this Section 5.6 shall survive any
succession of any Depositary, Registrar or Depositary's
Agent.
SECTION 5.7. Charges and Expenses. The
Company shall pay all transfer and other taxes and
governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all
charges of the Depositary in connection with the initial
deposit of the Stock and the initial issuance of the
Depositary Shares, all withdrawals of shares of the Stock
by owners of Depositary Shares, and any redemption or
exchange of the Stock at the option of the Company. All
other transfer and other taxes and governmental charges
shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the
Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable
for such charges and expenses. All other charges and
expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder
will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of
such charges and expenses. The Depositary shall present
its statement for charges and expenses to the Company at
such intervals as the Company and the Depositary may
agree.
ARTICLE VI
Amendment and Termination
SECTION 6.1. Amendment. The form of the
Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect
which they may deem necessary or desirable; provided,
however, that no such amendment (other than any change in
the fees of any Depositary or Registrar, which shall go
into effect not sooner than three months after notice
thereof to the holders of the Receipts) which shall
materially and adversely alter the rights of the holders
of Receipts shall be effective unless such amendment
shall have been approved by the holders of at least a
majority of the Depositary Shares then outstanding.
Every holder of an outstanding Receipt at the time any
such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to
such amendment and to be bound by the Deposit Agreement
as amended thereby.
SECTION 6.2. This Agreement may be terminated
by the Company or the Depositary only after (i) all
outstanding Depositary Shares have been redeemed pursuant
to Section 2.8 or (ii) there shall have been made a final
distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Company
and such distribution shall have been distributed to the
holders of Depositary Shares pursuant to Section 4.1 or
4.2, as applicable.
Upon the termination of this Deposit Agreement,
the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations
to the Depositary, any Depositary's Agent and any
Registrar under Sections 5.6 and 5.7.
ARTICLE VII
Miscellaneous
SECTION 7.1. Counterparts. This Deposit
Agreement may be executed in any number of counterparts,
and by each of the parties hereto on separate
counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one
and the same instrument.
SECTION 7.2. Exclusive Benefit of Parties.
This Deposit Agreement is for the exclusive benefit of
the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.3. Invalidity of Provisions. In
case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
SECTION 7.4. Notices. Any and all notices to
be given to the Company hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter,
addressed to the Company at:
Deposit Guaranty Corp.
210 East Capitol Street
Post Office Box 730
Jackson, Mississippi 39205
Attention: [ ]
Facsimile No.: [ ]
or at any other address of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the
Depositary hereunder or under the Receipts shall be in
writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to
the Depositary at the Depositary's Office, at:
[ ]
Attention: [ ]
Facsimile No.: [ ]
or at any other address of which the Depositary shall
have notified the Company in writing.
Any and all notices to be given to any record
holder of a Receipt hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given
if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed
to such record holder at the address of such record
holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a
written request that notices intended for such holder be
mailed to some other address, at the address designated
in such request.
Delivery of a notice sent by mail or by
telegram or facsimile transmission shall be deemed to be
effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the
case of a telegram or facsimile transmission) is
deposited, postage prepaid, in a post office letter box.
The Depositary or the Company may, however, act upon any
telegram or facsimile transmission received by it from
the other or from any holder of a Receipt,
notwithstanding that such telegram or facsimile
transmission shall not subsequently be confirmed by
letter or as aforesaid.
SECTION 7.5. Depositary's Agents. The
Depositary may from time to time appoint Depositary's
Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or
terminate the appointment of such Depositary's Agents.
The Depositary will notify the Company of any such
action.
The Company hereby also appoints the Depositary
as Registrar in respect of the Receipts and the
Depositary hereby accepts such appointments.
SECTION 7.6. Holders of Receipts Are Parties.
The holders of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by
all of the terms and conditions hereof and of the
Receipts by acceptance of delivery thereof.
SECTION 7.7. GOVERNING LAW. THIS DEPOSIT
AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND
THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 7.8. Inspection of Deposit Agreement.
Copies of this Deposit Agreement shall be filed with the
Depositary and the Depositary's Agent and shall be open
to inspection during business hours at the Depositary's
Office and respective offices of the Depositary's Agent,
if any, by any holder of a Receipt.
SECTION 7.9. Headings. The headings of
articles and sections in this Deposit Agreement and in
the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be
regarded as a part of this Deposit Agreement or the
Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in
the Receipts.
IN WITNESS WHEREOF, the Company and the
Depositary have duly executed this Agreement as of the
day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.
DEPOSIT GUARANTY CORP.
Attested by
_______________________ By:__________________________
[SEAL]
Attested by [ ]
_______________________ By:_________________________
[SEAL]
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH DEPOSITARY SHARE REPRESENTING A ONE-TENTH INTEREST IN ONE SHARE
OF PREFERRED STOCK, NO PAR VALUE, OF
DEPOSIT GUARANTY CORP. CERTIFICATE FOR
-----------------
INCORPORATED UNDER THE LAWS OF THE STATE
OF MISSISSIPPI DEPOSIT SHARES , as Depositary ------------------
(the "Depositary) hereby certifies that
Transferrable Depositary Receipt This Certificate
is transferable in
New York New York
CUSIP [ ]
Is the registered owner of [ ] DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing a one-tenth interest
in one share of [ ] Preferred Stock, no par value, $ stated value
per preferred share (the "Stock"), of Deposit Guaranty Corp., a Mississippi
corporation (the "Corporation") on deposit with the Depositary, subject to
the terms and entitled to the benefits of the Deposit Agreement dated as
of , 199 (the "Deposit Agreement"), between the
Corporation and the Depositary. By accepting this Depositary Receipt, the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not be
valid or obligatory for any purpose or be entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by
the manual signature of a duly authorized officer or, if executed in facsimile
by the Depositary, countersigned by a Registrar in respect of the Depositary
Receipts by a duly authorized officer thereof.
Dated
Countersigned
[ ]
Depositary and Registrar
By
Authorized Officer
DEPOSIT GUARANTY CORP.
DEPOSIT GUARANTY CORP. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND
A STATEMENT OR SUMMARY OF THE CERTIFICATE OF DESIGNATIONS OF
DIRECTORS ESTABLISHING THE POWERS, DESIGNATIONS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIFIED RIGHTS OF
THE [ ] PREFERRED STOCK AND EACH OTHER CLASS OF PREFERRED
STOCK OR SERIES THEREOF WHICH THE CORPORATION IS AUTHORIZED TO
ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF
SUCH PREFERENCE AND/OR RIGHTS. ANY SUCH REQUEST SHOULD BE
ADDRESSED TO DEPOSIT GUARANTY CORP. [ ] DEPARTMENT,
210 EAST CAPITOL STREET, P.O. BOX 730, JACKSON, MISSISSIPPI
39205.
____________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Depositary Receipt, shall be construed as though
they are written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ____ Custodian____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenant with right under Uniform Gifts to
of survivorship and not as Minors Act ___________
tenants in common (State)
UNIF TRAN MIN ACT -____Custodian (until
(Cust) age____)
_____ under Uniform Transfers
(Minor)
Minors Act ______________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, --------------------------------- hereby
sell(s), assigns(s) and transfer(s) unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER
IDENTIFYING NUMBER
OF ASSIGNEE
|---------------------|
| |
|---------------------|
- --------------------------------------------------------------------
- --------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
- --------------------------------------------------------------------
- -----------------------------------------------------Depositary Shares
represented by the within Depositary Receipt, and doe(es) hereby
irrevocably constitute and appoint
- -----------------------------------------------------Attorney
transfer the said Depositary Shares on the books of the within
named Depositary with full power of substitution in the premises.
Dated ___________________________Signature:
NOTICE The signature to this
assignment must correspond with
the name as written upon the face
of this Depositary Receipt in
every particular, without
alteration or enlargement or any
change whatsoever
SIGNATURE GUARANTEED
____________________________
DEPOSIT GUARANTY CORP.,
[ ], As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
Dated as of , 199
TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
SECTION 2.1. Form and Transfer of Receipts . . . . 3
SECTION 2.2. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof . . . 4
SECTION 2.3. Registration of Transfer of Receipts . 5
SECTION 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock . . . . . . . . . . . . . . 6
SECTION 2.5. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts . . . . . . . . . . . . . . 7
SECTION 2.6. Lost Receipts, etc. . . . . . . . . . 7
SECTION 2.7. Cancellation and Destruction of
Surrendered Receipts . . . . . . . . 8
SECTION 2.8. Redemption of Stock . . . . . . . . . 8
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.1. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . 10
SECTION 3.2. Payment of Taxes or Other Governmental
Charges . . . . . . . . . . . . . . 10
SECTION 3.3. Warranty as to Stock . . . . . . . . . 11
SECTION 3.4. Warranty as to Receipts . . . . . . . 11
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.1. Cash Distributions . . . . . . . . . . 11
SECTION 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges . . . . . 12
SECTION 4.3. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . 12
SECTION 4.4. Notice of Dividends, etc.; Fixing Record
Date for Holders of Receipts . . . . 14
SECTION 4.5. Voting Rights . . . . . . . . . . . . 14
SECTION 4.6. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, etc. . . . . . . 15
SECTION 4.7. Delivery of Reports . . . . . . . . . 16
SECTION 4.8. List of Receipt Holders . . . . . . . 16
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar . . . . . . . . . . . . . 16
SECTION 5.2. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company 17
SECTION 5.3. Obligation of the Depositary, the
Depositary's Agents, the Registrar
and the Company . . . . . . . . . . 18
SECTION 5.4. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary . . . . . . . . 19
SECTION 5.5. Corporate Notices and Reports . . . . 20
SECTION 5.6. Indemnification by the Company . . . . 20
SECTION 5.7. Charges and Expenses . . . . . . . . . 21
ARTICLE VI
Amendment and Termination
SECTION 6.1. Amendment . . . . . . . . . . . . . . 21
SECTION 6.2. Termination . . . . . . . . . . . . . 22
ARTICLE VII
Miscellaneous
SECTION 7.1. Counterparts . . . . . . . . . . . . . 22
SECTION 7.2. Exclusive Benefit of Parties . . . . . 23
SECTION 7.3. Invalidity of Provisions . . . . . . . 23
SECTION 7.4. Notices . . . . . . . . . . . . . . . 23
SECTION 7.5. Depositary's Agents . . . . . . . . . 24
SECTION 7.6. Holders of Receipts Are Parties . . . 24
SECTION 7.7. GOVERNING LAW . . . . . . . . . . . . 24
SECTION 7.8. Inspection of Deposit Agreement . . . 25
SECTION 7.9. Headings . . . . . . . . . . . . . . . 25
Form of Depositary Shares
Form of Face of Receipt . . . . . . . . . . . . . . . A-1
Form of Reverse of Receipt . . . . . . . . . . . . . A-2
<TABLE>
<CAPTION>
DEPOSIT GUARANTY CORP.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
Nine Months Ended
Year Ended December 31, September 30,
------------------------------------------------------ ---------------------
1990 1991 1992 1993 1994 1994 1995
(amounts of thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS
Income before income taxes $32,932 $42,310 $59,784 $93,854 $99,593 $71,0475 $82,529
Interest on Federal funds purchased,
securities sold under agreements to
repurchase and other short-term borrowings 36,549 24,814 16,632 14,492 16,565 11,616 22,389
Interest on long-term debt 2,107 2,102 563 -- -- -- --
EARNINGS INCLUDING INTEREST ON DEPOSITS 71,588 69,226 76,979 108,346 116,158 82,661 104,918
Interest on deposits 218,367 204,557 138,264 110,195 109,316 79,995 104,739
EARNINGS EXCLUDING INTEREST ON DEPOSITS 289,955 273,783 215,243 218,541 225,474 162,656 209,657
FIXED CHARGES
Interest on Federal funds sold, securities
sold under agreements to repurchase
and other short-term borrowings 36,549 24,814 16,632 14,492 16,565 11,616 22,389
Interest on long-term debt 2,107 2,102 563 -- -- -- --
FIXED CHARGES EXCLUDING INTEREST ON DEPOSITS 38,656 26,916 17,195 14,492 16,565 11,616 22,389
Interest on deposits 218,367 204,557 138,264 110,195 109,316 79,995 104,739
FIXED CHARGES INCLUDING INTEREST ON DEPOSITS 257,023 231,473 155,459 124,687 125,881 91,611 127,128
COMBINED FIXED CHARGES AND PREFERRED STOCK
DIVIDEND REQUIREMENTS
Fixed charges excluding interest on deposits 38,656 26,916 17,195 14,492 16,565 11,616 22,389
Preferred stock dividend requirements -- -- -- -- -- -- --
Fixed charges including interest on deposits 257,023 231,473 155,459 124,687 125,881 91,611 127,128
Preferred stock dividend requirements -- -- -- -- -- -- --
RATIOS
Earnings to fixed charges:
Excluding interest on deposits 1.85 2.57 4.48 7.48 7.01 7.12 4.69
Including interest on deposits 1.13 1.18 1.38 1.75 1.79 1.78 1.65
Earnings to combined fixed charges and
preferred stock dividend requirements
Excluding interest on deposits 1.85 2.57 4.48 7.48 7.01 7.12 4.69
Including interest on deposits 1.13 1.18 1.38 1.75 1.65 1.78 1.79
</TABLE>
Independent Accountants' Consent
The Board of Directors
Deposit Guaranty Corp.:
We consent to the use of our audit report dated February 3, 1995
on the consolidated financial statements of Deposit Guaranty
Corp. and subsidiaries as of December 31, 1994 and 1993, and for
each of the years in the three-year period ended December 31,
1994 incorporated herein by reference and to the reference to
our firm under the heading "Experts" in the prospectus. Our
report refers to a change in the method of accounting for debt
securities.
KPMG PEAT MARWICK LLP
Jackson, Mississippi
November 15, 1995
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a
Trustee Pursuant to Section 305(b)(2) ___
SUNTRUST BANK, ATLANTA
(Exact name of trustee as specified in its charter)
Georgia Banking Corporation 58-0466330
(Jurisdiction of incorporation or organization (I.R.S. employer
if not a U.S. national bank) identification no.)
25 Park Place, N.E.
Atlanta, Georgia 30303
(Address of principal executive offices) (Zip Code)
Bryan Echols
SunTrust Bank, Atlanta
58 Edgewood Ave., N.E.
Suite 400A
Atlanta, Georgia 30303
(404) 588-7813
(Name, address and telephone number of agent for service)
_________________________
Deposit Guaranty Corp.
(Exact name of obligor as specified in its charter)
Mississippi 64-0472169
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
210 East Capitol Street
Post Office Box 730 39205
Jackson, Mississippi (Zip Code)
(Address of principal
executive offices)
_________________________
Debt Securities
(Title of the indenture securities)
GENERAL
Item 1. General Information.
(a) Name and address of each examining or supervising
authority to which it is subject.
Department of Banking and Finance
State of Georgia
Atlanta, Georgia
Federal Reserve Bank of Atlanta
104 Marietta Street, N.W.
Atlanta, Georgia
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
None.
Item 3. Voting Securities of the Trustee.
Not applicable.
Item 4. Trusteeships under Other Indentures.
Not applicable.
Item 5. Interlocking Directorates and Similar Relationships
with the Obligor or Underwriters.
Not applicable.
Item 6. Voting Securities of the Trustee Owned by the Obligor
or its Officials.
Not applicable.
Item 7. Voting Securities of the Trustee Owned by Underwriters
or their Officials.
Not applicable.
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Not applicable.
Item 9. Securities of Underwriters Owned or Held by the
Trustee.
Not applicable.
Item 10. Ownership or Holdings by the Trustee of Voting
Securities of Certain Affiliates or Security Holders of
the Obligor.
Not applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities
of a Person Owning 50 Percent or More of the Voting
Securities of the Obligor.
Not applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Not applicable.
Item 13. Defaults by the Obligor.
(a) Whether there is or has been a default with
respect to the securities under this indenture.
There is not and has not been any such default.
(b) If the trustee is a trustee under another
indenture under which any other securities, or
certificates of interest or participation in any
other securities, of the obligor are outstanding,
or is trustee for more that one outstanding series
of securities under the indenture, state whether
there has been a default under any such indenture
or series.
There has not been any such default.
Item 14. Affiliations with the Underwriters.
Not applicable.
Item 15. Foreign Trustee.
Not applicable.
Item 16. List of Exhibits.
The additional exhibits listed below are filed herewith;
exhibits, if any, identified in parentheses are on file with the
Commission and are incorporated herein by reference as exhibits
hereto pursuant to Rule 7a-29 under the Trust Indenture Act of
1939, as amended, and Rule 24 of the Commission's Rules of
Practice.
Exhibit
Number
1 - A copy of the Articles of Amendment and Restated
Articles of Incorporation as now in effect. (Exhibit 1
to Form T-1, Registration No. 33-63523.)
2 - A copy of the certificate of authority of the Trustee
to commence business. (Included in Exhibit 1.)
3 - A copy of the authorization of the Trustee to exercise
trust powers. (Included in Exhibit 1.)
4 - Bylaws of the Trustee. (Included in Exhibit 4 to Form
T-1, Registration No. 33-49283.)
5 - Not applicable.
6 - Consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939, as amended.
7 - Latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising
or examining authority as of the close of business on
June 30, 1995. (Exhibit 7 to Form T-1, Registration
No. 33-99174.)
8 - Not applicable.
9 - Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the Trustee, SunTrust Bank, Atlanta, a Georgia
corporation, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Atlanta and the State of Georgia,
on the 16th day of November, 1995.
SUNTRUST BANK, ATLANTA
By:/s/ Bryan Echols
Bryan Echols
Vice President
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, as amended, in connection with the
proposed issue of Debt Securities by Deposit Guaranty Corp., we
hereby consent that reports of examination by Federal, State,
Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon
request therefor.
SUNTRUST BANK, ATLANTA
By:/s/ Bryan Echols
Bryan Echols
Vice President
Dated: November 16, 1995
