<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 11, 1999
REGISTRATION NO. 333-66013
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
UNITED HEALTHCARE MINNESOTA 41-1321939
CORPORATION DELAWARE APPLIED FOR
UHC CAPITAL I DELAWARE APPLIED FOR
UHC CAPITAL II DELAWARE APPLIED FOR
UHC CAPITAL III DELAWARE APPLIED FOR
UHC CAPITAL IV (STATE OR OTHER (I.R.S. EMPLOYER
(EXACT NAME OF JURISDICTION IDENTIFICATION CODE)
REGISTRANT OR INCORPORATION OR
AS SPECIFIED IN ITS ORGANIZATION)
CHARTER)
300 OPUS CENTER DAVID J. LUBBEN, ESQ.
9900 BREN ROAD EAST 300 OPUS CENTER
MINNETONKA, MINNESOTA 55343 9900 BREN ROAD EAST
(612) 936-1300 MINNETONKA, MINNESOTA 55343
(ADDRESS, INCLUDING ZIP CODE, AND (612) 936-1300
TELEPHONE NUMBER, (NAME, ADDRESS AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S INCLUDING AREA CODE, OF AGENT FOR
PRINCIPAL EXECUTIVE OFFICES) SERVICE)
COPY TO:
PATRICK F. COURTEMANCHE, ESQ.
DORSEY & WHITNEY LLP
PILLSBURY CENTER SOUTH
220 SOUTH SIXTH STREET
MINNEAPOLIS, MINNESOTA 55402-4302
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE 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 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. [_]
--------------
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 OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED JANUARY 11, 1999.
PROSPECTUS
UNITED HEALTHCARE CORPORATION
300 OPUS CENTER
9900 BREN ROAD EAST
MINNETONKA, MINNESOTA 55343
(612) 936-1300
$1,250,000,000
UNITED HEALTHCARE CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
DEPOSITARY SHARES
SECURITIES WARRANTS
UHC CAPITAL I
UHC CAPITAL II
UHC CAPITAL III
UHC CAPITAL IV
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED IN THIS PROSPECTUS, BY
UNITED HEALTHCARE CORPORATION
----------------
We will provide the specific terms of these securities in supplements to this
prospectus.
You should read this prospectus and the applicable prospectus supplement
carefully before you invest.
----------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that United HealthCare and
the trusts (namely, UHC Capital I, UHC Capital II, UHC Capital III and UHC
Capital IV) filed with the SEC using a "shelf" registration process. Under this
shelf process, United HealthCare may sell:
. debt securities;
. its preferred stock;
. its common stock;
. Depositary Shares (as defined under "DESCRIPTION OF DEPOSITARY SHARES"); and
. Securities Warrants (as defined under "DESCRIPTION OF SECURITIES WARRANTS")
and the trusts may sell:
. preferred securities (representing undivided beneficial interests in the
trusts) to the public; and
. common securities to United HealthCare in one or more offerings.
The trusts will use the proceeds from sales of securities to buy series of
junior subordinated debt securities from United HealthCare with terms that
correspond to the preferred securities.
In the event that a trust sells preferred securities under this prospectus and
uses the proceeds from such sale to buy junior subordinated debt securities
from United HealthCare, United HealthCare:
. will pay principal and interest on the junior subordinated debt securities,
subject to the payment of its more senior debt;
. may choose to distribute the junior subordinated debt securities pro-rata to
the holders of the related preferred securities and common securities if it
terminates a trust; and
. will fully and unconditionally guarantee the preferred securities based on:
. its obligations to make payments on the junior subordinated debt
securities;
. its obligations under the guarantees (its payment obligations are subject
to payment on all of its general liabilities); and
. its obligations under the applicable trust agreements.
This prospectus provides you with a general description of the securities. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read this prospectus and the applicable prospectus
supplement together with the additional information described under the heading
"WHERE YOU CAN FIND MORE INFORMATION."
The registration statement that contains this prospectus (including the
exhibits to the registration statement) contains additional information about
United HealthCare and the trusts and the securities offered under this
prospectus. That registration statement can be read at the SEC web site or at
the SEC offices mentioned under the heading "WHERE YOU CAN FIND MORE
INFORMATION."
WHERE YOU CAN FIND MORE INFORMATION
United HealthCare files annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any document United
HealthCare files at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
further information on the public
2
<PAGE>
reference rooms. United HealthCare's SEC filings are also available to the
public from the SEC's web site at http://www.sec.gov. United HealthCare's SEC
filings are also available at the offices of the NYSE. For further information
on obtaining copies of United HealthCare's public filings at the NYSE, you
should call 1-212-656-5060.
The SEC allows United HealthCare to "incorporate by reference" the information
United HealthCare files with it, which means that United HealthCare can
disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this
prospectus, and later information that United HealthCare files with the SEC
will automatically update this prospectus. United HealthCare incorporates by
reference the following documents listed below and any future filings made with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, until
United HealthCare or any underwriters sell all of the securities:
. Annual Report on Form 10-K for the year ended December 31, 1997;
. Quarterly Reports on Form 10-Q for quarters ended March 31, June 30 and
September 30, 1998;
. Current Reports on Form 8-K filed on May 29, 1998, June 16, 1998, December 1,
1998, and January 8, 1999; and
. The description of United HealthCare's common stock contained in the
registration statement on Form 8-A dated September 20, 1992, and any
amendment or report filed for the purpose of updating such description filed
after the date of this prospectus and prior to the termination of this
offering.
You may request a copy of these filings at no cost, by writing to or
telephoning United HealthCare at the following address:
United HealthCare Corporation
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Attn: Investor Relations
(612) 936-1300
The trusts have no separate financial statements. The statements would not be
material to holders of the preferred securities because the trusts have no
independent operations.
You should rely only on the information incorporated by reference or provided
in this prospectus or any prospectus supplement. United HealthCare has not
authorized anyone else to provide you with different information. United
HealthCare is not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents.
UNITED HEALTHCARE CORPORATION
United HealthCare is a national leader in offering health care coverage and
related services, which it offers through six lines of business:
ORGANIZED HEALTH SYSTEMS. United HealthCare organizes, operates and manages
health systems, serving customers in all 50 states. Health systems we offer
include:
. Health Maintenance Organization (HMO), where we contract with health care
providers within a defined geographic area to provide an agreed upon set of
preventive and health maintenance and treatment services to enrolled members
who pay a fixed, pre-paid premium;
. Preferred Provider Organization (PPO), in which we establish contracts with a
network
3
<PAGE>
of providers of medical care and encourage people to use the "preferred
providers" by offering better benefits and lower cost for services received
from preferred providers; and,
. Point-of-Service Plans (POS), which are health benefit plans that allow the
covered person to choose to receive service from a participating or non-
participating health care provider, with better benefit levels for using
participating providers. POS plans may be offered through HMOs or PPOs, which
are sometimes combined with managed indemnity and supplemental insurance
plans.
INSURANCE SERVICES. United HealthCare has several insurance affiliates that
underwrite the health insurance coverage provided through its PPO and POS
plans, as well as its Medicare supplemental insurance.
ADMINISTRATIVE SERVICES. United HealthCare provides administrative support
services and strategic planning services to large employers who self-insure
their employee benefits programs. Services include: member enrollment, member
eligibility, claim processing, issuing documents, billing and banking, customer
service and production of plan descriptions, provider directories and ID cards.
HEALTH AND WELL-BEING SERVICES FOR RETIREES AND OLDER AMERICANS. United
HealthCare provides Medicare supplement insurance and hospital indemnity
coverage for members enrolled in the health insurance program of the American
Association of Retired Persons (AARP). The company also provides health care
benefits to elderly nursing home residents through EverCare, a program which
works with the Medicare program and arranges the delivery of health care
services in the nursing home for no extra premium cost.
SPECIALIZED CARE SERVICES. United HealthCare arranges and offers benefits,
networks of health care providers, and services focused on highly specialized
health care needs. These include employee assistance/counseling programs,
mental health/substance abuse services, a contracted network of solid organ
transplant programs and related services, 24-hour health information and
counseling services and health publications.
KNOWLEDGE AND INFORMATION SERVICES. United HealthCare offers reporting,
research, publishing and consulting services to health care providers,
employers, pharmaceutical companies and government institutions.
THE TRUSTS
United HealthCare created statutory business trusts under Delaware law pursuant
to separate trust agreements. United HealthCare executed as sponsor for each
trust, and the five appointed trustees signed in their respective capacities.
United HealthCare executed, together with the relevant trustees, the trust
agreements with respect to each trust and will execute, together with the
relevant trustees, an amended and restated trust agreement for each trust, in
the form filed as an exhibit to the Registration Statement, which will state
the terms and conditions for each trust to issue and sell its preferred
securities and common securities.
United HealthCare filed a certificate of trust with respect to each trust, with
the Delaware Secretary of State on October 20, 1998.
Each trust exists solely to:
. issue and sell preferred securities and common securities;
. use the gross proceeds from the sale of the preferred securities and common
securities to purchase corresponding series of United
4
<PAGE>
HealthCare's junior subordinated debt securities ("Corresponding Junior
Subordinated Debt Securities");
. maintain their status as grantor trusts for federal income tax purposes; and
. engage in other activities that are necessary or incidental to these
purposes.
United HealthCare will purchase all of the common securities of each trust. The
common securities will represent an aggregate liquidation amount equal to at
least 3% of each trust's total capitalization. The preferred securities will
represent the remaining 97% of each trust's total capitalization. The common
securities will have terms substantially identical to, and generally will rank
equal in priority of payment with, the preferred securities. If United
HealthCare defaults on the Corresponding Junior Subordinated Debt Securities,
then distributions on the common securities will be subordinate to the
preferred securities in priority of payment.
For each trust, United HealthCare, as the direct or indirect holder of all of
the common securities, has appointed five Trustees (collectively, "Junior
Subordinated Trustees") to conduct such trust's business and affairs.
Prior to the issuance of any preferred securities, United HealthCare will
insure that a majority of the trustees of each trust are persons who are
employees or officers or affiliates of United HealthCare (the "Administrative
Trustees") and that one trustee of each trust is a financial institution which
will not be an affiliate of United HealthCare and which will act as the
property trustee (the "Property Trustee") and as indenture trustee the
"Indenture Trustee," for purposes of the Trust Indenture Act, pursuant to the
terms set forth in a prospectus supplement. In addition, unless the Property
Trustee maintains a principal place of business in the State of Delaware, and
otherwise meets the requirements of applicable law, one trustee of each of the
trusts will have its principal place of business or reside in the State of
Delaware (the "Delaware Trustee").
As holder of the common securities, United HealthCare can appoint, replace or
remove any of or increase or decrease the number of trustees, except in certain
circumstances.
The preferred securities will be fully and unconditionally guaranteed by United
HealthCare as described under "DESCRIPTION OF THE GUARANTEES."
The principal executive offices of each trust is c/o United HealthCare
Corporation, 300 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343
and the telephone number is (612) 936-1300.
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net proceeds
from the sale of the securities offered by United HealthCare will be added to
United HealthCare's general funds and may be used to:
. meet United HealthCare's working capital requirements;
. redeem or repurchase outstanding securities;
. refinance debt; and/or
. finance acquisitions.
If United HealthCare does not use the net proceeds immediately, it will
temporarily invest them in short-term, interest-bearing obligations. Each trust
will use all proceeds received from the sale of its securities to purchase
junior subordinated debt securities of United HealthCare.
5
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES AND TO FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The Ratio of Earnings to Fixed Charges and of Earnings to Fixed Charges and
preferred stock Dividends for each of the periods indicated is as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1997 1996 1995 1994 1993
----- ---- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges............... 10.75 8.58 11.53 17.78 13.90
===== ==== ===== ===== =====
Ratio of Earnings to Fixed Charges and preferred
stock Dividends................................. 6.65 5.38 9.10 17.78 13.90
===== ==== ===== ===== =====
</TABLE>
For purposes of computing these ratios, earnings represent income from
continuing operations before extraordinary items. Fixed charges represent
interest expense, including amounts capitalized plus the interest factor in
rental expense. For purposes of calculating the ratios of earnings to fixed
charges and preferred stock dividends, fixed charges would then be combined
with preferred stock dividend requirements, adjusted to a pretax basis, on the
outstanding preferred stock of United HealthCare.
Earnings were insufficient to cover fixed charges by $250 million for the nine
months ended September 30, 1998. Excluding the realignment charge of $725
million taken by United HealthCare in the second quarter of 1998, the pro forma
ratio of earnings to fixed charges would have been 8.26. Earnings were
insufficient to cover fixed charges and preferred stock dividends by $291
million for the nine months ended September 30, 1998. Excluding the realignment
charge of $725 million taken by United HealthCare in the second quarter of
1998, the pro forma ratio of earnings to fixed charges and preferred stock
dividends would have been 5.35.
For current information on these ratios, please see United HealthCare's most
recent Form 10-K and 10-Q. See "WHERE YOU CAN FIND MORE INFORMATION."
DESCRIPTION OF SECURITIES
This prospectus contains a summary of the senior debt securities ("Senior Debt
Securities"), the subordinated debt securities ("Subordinated Debt
Securities"), the junior subordinated debt securities issued to the trusts (the
"Junior Subordinated Debt Securities") (collectively, "Debt Securities"), the
preferred stock, the common stock, the Depositary Shares, the Securities
Warrants, the preferred securities and the Guarantee. Because these are
summaries they do not contain all of the information that may be important to
you. You should read (1) the agreement between United HealthCare and The Bank
of New York, as trustee ("Senior Trustee"), under which the Senior Debt
Securities will be issued ("Senior Indenture"), (2) the agreement between
United HealthCare and The Bank of New York, as trustee ("Subordinated
Trustee"), under which the Subordinated Debt Securities will be issued
("Subordinated Indenture"), (3) the agreement between United HealthCare and The
Bank of New York, as trustee ("Junior Subordinated Trustee"), under which the
Junior Subordinated Debt Securities will be issued ("Junior Subordinated
Indenture"), (4) the Certificate of Designations, Performances and Rights of
preferred stock, (5) the Deposit Agreement (as defined herein), (6) the common
stock Warrant Agreement, the preferred stock Warrant Agreement and the Debt
Securities Warrant Agreement (in each case as defined herein, and collectively,
the "Securities Warrant Agreements"), (7) the trust agreement, (8) the
guarantee of the preferred securities by United HealthCare ("Guarantee"), and
(9) the applicable prospectus supplement for the
6
<PAGE>
material terms and conditions of each security. Forms of the documents listed
in (1) through (8) are filed as exhibits to the registration statement, which
includes this prospectus.
DESCRIPTION OF DEBT SECURITIES
DESCRIPTION OF SENIOR DEBT SECURITIES
This section describes the general terms and provisions of the Senior Debt
Securities that may be offered by this prospectus. The prospectus supplement
will describe the specific terms of the series of the Senior Debt Securities
offered under that prospectus supplement and any general terms outlined in this
section that will not apply to those Senior Debt Securities.
The Senior Debt Securities will be issued under the Senior Indenture. The
Senior Indenture will be qualified under the Trust Indenture Act. The form of
the Senior Indenture has been filed as an exhibit to the registration
statement.
This section summarizes certain terms and provisions of the Senior Indenture.
The summary is not complete. You should read the form of Senior Indenture for
additional information before you buy any Senior Debt Securities. Capitalized
terms used but not defined under "DESCRIPTION OF DEBT SECURITIES--Description
of Senior Debt Securities" have the meanings specified in the Senior Indenture.
GENERAL
The Senior Debt Securities may be issued from time to time in one or more
series. Senior Debt Securities issued under the Senior Indenture will be issued
as part of a series that United HealthCare has established pursuant to the
Senior Indenture. The amount of Senior Debt Securities offered by this
prospectus will be limited to the amount of securities set forth on the cover
of this prospectus that United HealthCare has not already issued or reserved
for issuance. The Senior Indenture will not limit the aggregate principal
amount of Senior Debt Securities which United HealthCare may issue under the
Senior Indenture.
The Senior Debt Securities will be unsecured and will rank equally with other
unsecured, unsubordinated indebtedness of United HealthCare.
Unless the applicable prospectus supplement indicates otherwise, the Senior
Debt Securities will be issued only in registered form, without coupons, in
denominations of $1,000 each or multiples of $1,000.
Senior Debt Securities may be issued in the form of one or more global
securities, as described below under "Global Senior Debt Securities."
There will be no service charge for any registration of transfer or exchange of
the Senior Debt Securities, but United HealthCare may require you to pay any
tax or other governmental charge payable in connection with a transfer or
exchange of the Senior Debt Securities.
Senior Debt Securities may be issued as original issue discount securities to
be sold at a substantial discount below their principal amount. If a Senior
Debt Security is an original issue discount security, that means that an amount
less than the principal amount of the Senior Debt Security will be due and
payable upon a declaration of acceleration of the maturity of the Senior Debt
Security pursuant to the Senior Indenture. The applicable prospectus supplement
will describe the federal income tax consequences and other special factors
which should be considered prior to purchasing any original issue discount
securities.
7
<PAGE>
United HealthCare will designate a place of payment where you can receive
payment of the principal of and any premium and interest on the Senior Debt
Securities or transfer the Senior Debt Securities. Unless otherwise set forth
in the applicable prospectus supplement, United HealthCare will pay interest on
the Senior Debt Securities to the person listed as the owner of the Senior Debt
Securities in the Security Register at the close of business on the regular
record date for the applicable interest payment date. Defaulted interest,
however, may be paid to holders as of special record dates established in the
manner set forth in the Senior Indenture.
A prospectus supplement relating to a series of Senior Debt Securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
. the title and type of the Senior Debt Securities;
. any limit on the total principal amount of the Senior Debt Securities;
. the person to whom any interest on the Senior Debt Securities will be
payable, if other than the person in whose name they are registered on the
regular record date for such interest;
. the date or dates on which the principal of and premium, if any, on the
Senior Debt Securities will be payable;
. the interest rate on the Senior Debt Securities; the date from which interest
will accrue; the record and interest payment dates on the Senior Debt
Securities; any circumstances under which United HealthCare may defer
interest payments; and the basis for calculating interest if other than a
360-day year of twelve 30-day months;
. the place or places where the principal of and premium, if any, and interest
on the Senior Debt Securities will be payable and the Senior Debt Securities
may be surrendered for registration of transfer or exchange;
. any applicable redemption provisions that would permit United HealthCare to
elect redemption of the Senior Debt Securities prior to their final maturity;
. whether monies will be accumulated on a regular basis in a separate custodial
account ("sinking fund") that would be used by United HealthCare to redeem
the Senior Debt Securities prior to their final maturity;
. whether the Senior Debt Securities will be convertible into or exchangeable
for shares of common stock, and if so, the terms and conditions upon which
such Senior Debt Securities will be so convertible or exchangeable;
. the identity of each Security Registrar and Paying Agent, if other than or in
addition to the Senior Trustee;
. if the amount of principal of or any premium or interest on the Senior Debt
Securities may be determined by reference to an index or pursuant to a
formula, the manner in which such amounts shall be determined;
. the denominations in which the Senior Debt Securities will be issued;
. any changes to or additional events of default under the Senior Indenture or
covenants, and any change in the right of the Senior Trustee or the holders
to declare the principal of or any premium or interest on the Senior Debt
Securities due and payable;
. if less than the principal amount, the portion of the principal payable upon
acceleration of the Senior Debt Securities following an event of default;
. whether the Senior Debt Securities are to be issued in whole or in part in
the form of one or more global securities;
. whether the provisions described under the heading "Defeasance" below apply
to the Senior Debt Securities;
8
<PAGE>
. the name and address of the Senior Trustee with respect to the Senior Debt
Securities; and
. any other terms of the Senior Debt Securities.
REDEMPTION
The prospectus supplement relating to any offered Senior Debt Securities will
specify the provisions, if any, for redemption of such Senior Debt Securities
at the option of United HealthCare.
Except as set forth in the prospectus supplement with respect to any offered
Senior Debt Securities, United HealthCare is not required to make mandatory
redemption or sinking fund payments with respect to the Senior Debt Securities.
The prospectus supplement relating to any offered Senior Debt Securities will
specify the provisions, if any, regarding sinking fund provisions related to
such Senior Debt Securities. The Senior Indenture provides that United
HealthCare may deliver outstanding Senior Debt Securities, with similar terms,
of a series (other than any previously called for redemption) and may apply as
a credit Senior Debt Securities, with similar terms, of a series which have
been redeemed either at the election of United HealthCare pursuant to the terms
of such Senior Debt Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Senior Debt Securities, in
each case in satisfaction of all or any part of any sinking fund payment with
respect to the Senior Debt Securities, with similar terms, of such series
required to be made pursuant to the terms of such Senior Debt Securities as
provided for by the terms of such series.
The Senior Indenture provides that, if less than all of the Senior Debt
Securities of any series are to be redeemed at any time, selection of Senior
Debt Securities for redemption will be made by the Senior Trustee on a pro rata
basis (and in such manner as complies with applicable legal and stock exchange
requirements, if any), or by such other method as the Senior Trustee shall deem
fair and appropriate. Portions of the Senior Debt Securities selected for
redemption shall be in amounts of $1,000 or in multiples of $1,000, except that
if all of the Senior Debt Securities of a holder are to be redeemed, the entire
outstanding amount shall be redeemed.
Notices of redemption shall be mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each holder of Senior Debt
Securities to be redeemed at its registered address. If any Senior Debt
Security is to be redeemed in part only, the notice of redemption that relates
to such Senior Debt Security shall state the portion of the principal amount of
such Senior Debt Security to be redeemed. A new Senior Debt Security with
similar terms and of the same series in principal amount equal to the
unredeemed portion of the original Senior Debt Security, if any, will be issued
in the name of the holder of the new Senior Debt Security upon cancellation of
the original Senior Debt Security.
On and after the redemption date, interest will no longer accrue on Senior Debt
Securities or portions of them called for redemption unless United HealthCare
defaults in the payment of the redemption price and accrued interest.
REPURCHASE AT THE OPTION OF HOLDERS
Unless otherwise set forth in the prospectus supplement with respect to any
offered Senior Debt Securities, the Senior Indenture does not contain
provisions that require United HealthCare to repurchase Senior Debt Securities
at the option of the holders of such Senior Debt Securities.
9
<PAGE>
The Senior Indenture provides that:
. if repurchase rights are provided for in a prospectus supplement, and
. if the amounts deposited in connection with all such repurchase rights are
insufficient to pay the repurchase price of all Senior Debt Securities of
the applicable series having such repurchase rights,
then, the Senior Trustee shall select Senior Debt Securities to be repurchased
on a pro rata basis among all holders of such series of Senior Debt Securities
having such repurchase rights and who elects to exercise such repurchase
rights (and in such manner as complies with any applicable legal and stock
exchange requirements).
CONVERSION AND EXCHANGE
If any offered Senior Debt Securities are convertible into common stock at the
option of the holders or exchangeable for common stock at the option of United
HealthCare, the prospectus supplement relating to such Senior Debt Securities
will include the terms and conditions governing such conversions and
exchanges.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Senior Indenture. Please
refer to the Senior Indenture for full definitions of all such terms.
"Capital Stock" means:
. corporate stock including, without limitation, common stock and preferred
stock;
. any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
. partnership interests (whether general or limited); and
. any other interest or participation that confers on a person the right to
receive a share of the profits and losses of, or distributions of assets of,
the issuing person.
"Consolidated Net Worth" means, with respect to any person as of any date, the
sum of:
. the consolidated equity of the common shareholders of such person and its
consolidated Subsidiaries as of such date; plus
. the respective amounts reported on such person's balance sheet as of such
date with respect to any series of preferred stock (other than Disqualified
Stock) that by its terms is not entitled to the payment of dividends unless
such dividends may be declared and paid only out of net earnings in respect
of the year of such declaration and payment, but only to the extent of any
cash received by such person upon issuance of such preferred stock; less
. all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern business
made within 12 months after the acquisition of such business) subsequent to
the date of the Senior Indenture in the book value of any asset owned by
such person or a consolidated Subsidiary of such person; and
. all unamortized debt discount and expense and unamortized deferred charges
as of such date,
all of the foregoing determined in accordance with GAAP.
"Default" means any event that is or with the passage of time or the giving of
notice or both would be an event of default under the Senior Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event:
. matures; or
10
<PAGE>
. is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise; or
. is redeemable at the option of the holder of such Capital Stock,
in whole or in part, on or prior to the date that is 91 days after the date on
which the applicable Senior Debt Securities mature.
"GAAP" means generally accepted accounting principles set forth in:
. the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants; and
. the statements and pronouncements of the Financial Accounting Standards Board
or such other statements by such other entity as have been approved by a
significant segment of the accounting profession, which are in effect from
time to time.
"Indebtedness" means indebtedness for money borrowed.
"Lien" means any:
. mortgage;
. pledge;
. lien;
. encumbrance;
. charge; or
. security interest of any kind.
"Principal Property" means:
. the land;
. the land improvements;
.the buildings; and
. the fixtures (to the extent they constitute real property interests)
(including any leasehold interest therein)
constituting United HealthCare's principal corporate office or any other
discrete facility of United HealthCare and its Subsidiaries (whether owned at
the date of initial issuance of the applicable Senior Debt Securities or
thereafter acquired), provided in each case that such facility:
. is owned by United HealthCare or any Subsidiary;
. is located within any of the present 50 states of the United States of
America or the District of Columbia;
. has not been determined in good faith by United HealthCare's Board of
Directors not to be of material importance to the business conducted by
United HealthCare and its Subsidiaries taken as a whole; and
. has a book value as on the date as of which the determination is being made
in excess of 5% of the Consolidated Net Worth of United HealthCare as of the
most recent quarterly consolidated balance sheet of United HealthCare
prepared in accordance with GAAP.
"Restricted Subsidiary" means:
. each Subsidiary as of the date of the Senior Indenture; and
. each Subsidiary thereafter created or acquired, provided, however, that any
Subsidiary may be expressly excluded by resolution of the board of directors
of United HealthCare before, or within 120 days following, such creation or
acquisition.
"Subsidiary" means, with respect to any person:
. any corporation, association or other business entity of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by such person or one or more of the other Subsidiaries of that
person (or a combination thereof); and
11
<PAGE>
. any partnership:
(a) the sole general partner or the managing general partner of which is such
person or a Subsidiary of such person; or
(b) the only general partners of which are such person or of one or more
Subsidiaries of such person (or any combination thereof), with certain
exceptions.
CERTAIN COVENANTS
LIMITATION ON LIENS. Unless the applicable prospectus supplement indicates
otherwise and except as otherwise indicated below, the Senior Indenture for
any Senior Debt Securities will provide that United HealthCare will not, and
will not permit any Restricted Subsidiary to, create, assume, incur or suffer
to exist:
. any Lien upon any stock or indebtedness of any Restricted Subsidiary,
whether owned on the date of the Senior Indenture or thereafter acquired, to
secure any Indebtedness of United HealthCare or any other person (other than
the Senior Debt Securities); or
. any Lien upon any Principal Property, whether owned or leased on the date of
the Senior Indenture, or thereafter acquired, to secure any Indebtedness of
United HealthCare or any other person (other than the Senior Debt
Securities),
without in any such case making effective provision to secure all the
outstanding Senior Debt Securities equally and ratably with such Indebtedness.
There will be excluded from the restriction referred to in the preceding
paragraph the following Liens ("Permitted Liens"):
. any Lien upon property, stock or indebtedness of an entity existing at the
time such entity becomes a Restricted Subsidiary;
. any Lien upon property, stock or indebtedness existing at the time of the
acquisition thereof by United HealthCare or a Restricted Subsidiary (whether
directly or by merger, consolidation or otherwise) or granted to secure
payment of any part of the purchase price thereof or granted to secure any
Indebtedness incurred to finance the purchase thereof (provided that such
Indebtedness is incurred before, concurrently with or within 270 days after
the completion of such purchase);
. any Lien upon property to secure any part of the cost of development,
construction, alteration, repair or improvement of such property or granted
to secure Indebtedness incurred to finance such cost (provided that such
Indebtedness is incurred before, concurrently with or within 270 days after
the completion of such development, construction, alteration, repair or
improvement);
. any Lien securing Indebtedness of a Restricted Subsidiary owing to United
HealthCare or to another Restricted Subsidiary;
. any Lien existing on the date of initial issuance of the applicable Senior
Debt Securities;
. any Lien on property of United HealthCare or a Restricted Subsidiary in
favor of the United States of America or any State or political subdivision
thereof, or in favor of any other country or any political subdivision
thereof, to secure payment pursuant to any contract or statute, rule or
regulation; and
. any extension, renewal or replacement, in whole or in part, of any Lien
referred to in the foregoing six bullet points; provided, however, that the
principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such extension,
renewal or replacement; and provided, further, that such Lien shall be
limited to all
12
<PAGE>
or part of the property which was subject to the Lien so extended, renewed or
replaced.
Notwithstanding the two preceding paragraphs, United HealthCare may, and may
permit any Restricted Subsidiary to, create, assume, incur or suffer to exist
any Lien upon any stock or indebtedness of any Restricted Subsidiary or upon
any Principal Property without equally and ratably securing the Senior Debt
Securities. The foregoing will only be permitted if the aggregate amount of all
Indebtedness then outstanding secured by such Lien and all similar Liens does
not exceed 10% of the Consolidated Net Worth of United HealthCare as of the
most recent quarterly consolidated balance sheet of United HealthCare prepared
in accordance with GAAP; provided, that Indebtedness secured by Permitted Liens
shall not be included in the amount of such secured Indebtedness.
MERGER, CONSOLIDATION, OR SALE OF ASSETS. The Senior Indenture provides that
United HealthCare may not merge with another company or sell or lease all of
its property to another company unless:
. United HealthCare is the continuing corporation, or the successor corporation
is a domestic corporation and expressly assumes the payment of principal and
interest on the Senior Debt Securities and the performance and observance of
all the covenants and conditions of the Senior Indenture binding on United
HealthCare;
. immediately after such transaction, United HealthCare, or the successor
corporation, is not in default in the performance of a covenant or condition
in the Senior Indenture; and
. United HealthCare, or the successor corporation, will have Consolidated Net
Worth immediately after the transaction equal to or greater than the
Consolidated Net Worth of United HealthCare immediately preceding the
transaction.
REPORTS. The Senior Indenture provides that so long as any Senior Debt
Securities are outstanding, United HealthCare will file with the Senior Trustee
and furnish to the holders of Senior Debt Securities all current, quarterly and
annual reports on Forms 8-K, 10-Q and 10-K and all proxy statements that it
files with the SEC. If United HealthCare no longer is subject to Section 13 or
15(d) of the Exchange Act, it will not be obligated to provide these reports to
the trustee and holders.
ABSENCE OF CERTAIN COVENANTS. The prospectus supplement relating to any offered
Senior Debt Securities will specify any additional restrictive covenants
applicable to such Senior Debt Securities. The Senior Indenture does not
contain provisions permitting the holders of Senior Debt Securities to require
United HealthCare to repurchase or redeem such Senior Debt Securities in the
event of a takeover, recapitalization or similar restructuring, highly
leveraged transaction, or downgrading of United HealthCare's debt ratings.
EVENTS OF DEFAULT; REMEDIES
The Senior Indenture provides that each of the following constitutes an event
of default with respect to the Senior Debt Securities of any series issued
pursuant to the Senior Indenture:
. failure to pay interest on any Senior Debt Security of that series for 30
days after the payment is due;
. failure to pay the principal of or premium, if any, on any Senior Debt
Security of that series when due;
. failure to deposit any mandatory sinking fund payment, when due on Senior
Debt Securities of that series;
13
<PAGE>
. failure to comply with the provisions described above under the heading
"Certain Covenants--Merger, Consolidation, or Sale of Assets;"
. failure by United HealthCare to comply with any of its other agreements in
the Senior Indenture or such Senior Debt Securities for 60 days after notice
from the Senior Trustee or holders of at least 25% of the principal amount of
the outstanding Senior Debt Securities of that series;
. certain events of bankruptcy or insolvency with respect to United HealthCare
or any of its Subsidiaries and
. any other event of default that may be specified for the Senior Debt
Securities of that series when that series is created.
If an event of default under the Senior Indenture occurs on outstanding Senior
Debt Securities of a particular series and continues, the Senior Trustee or
holders of at least 25% of that series' Senior Debt Securities may declare the
principal amount of all Senior Debt Securities in the series to be due and
payable immediately. Under certain circumstances, holders of a majority of the
Senior Debt Securities in the series may rescind that declaration.
Notwithstanding the foregoing, in the case of an event of default arising from
certain events of bankruptcy or insolvency with respect to United HealthCare or
any of its Subsidiaries, all principal, premium, if any, and interest on
outstanding Senior Debt Securities will become due and payable without further
action or notice. The Senior Trustee may withhold from holders of the Senior
Debt Securities of any series notice of any continuing default or event of
default under the Senior Indenture (except a default or event of default in
payment on any Senior Debt Security of any series or in the payment of any
sinking fund installment with respect to such series) if it determines that
withholding notice is in their best interest.
If an event of default occurs under the Senior Indenture which event of
default:
. occurs as a result of the willful action (or inaction) of United HealthCare
or its Subsidiaries; and
. results in the avoidance of the payment of any premium that United HealthCare
would have had to pay upon redemption of Senior Debt Securities
then, an equivalent premium shall also become immediately due and payable if
such Senior Debt Securities are repaid.
The holders of not less than a majority in principal amount of the outstanding
Senior Debt Securities of any series by written notice to the Senior Trustee
may waive an existing default or event of default with respect to such Senior
Debt Securities and its consequences. However, such waiver does not apply to a
continuing default or event of default in the payment of the principal of,
premium, if any, or interest on any such Senior Debt Security held by a
nonconsenting holder (other than a rescission of acceleration of such Senior
Debt Securities by the holders of at least a majority in principal amount of
such Senior Debt Securities and a waiver of the payment default resulting from
such acceleration). Upon any such waiver, such default shall cease to exist,
and any event of default with respect to such Senior Debt Securities arising
from such default shall be deemed to have been cured; but no such waiver shall
extend to any subsequent or other default or impair any future right with
respect to such default.
Holders of a majority in principal amount of the outstanding Senior Debt
Securities of any series may direct the time, method and place of conducting
any proceeding for any remedy
14
<PAGE>
available to, or exercising any trust or power conferred on, the Senior Trustee
with respect to such series. However, the Senior Trustee may refuse to follow
any direction that conflicts with law or the Senior Indenture that the Senior
Trustee determines may be unduly prejudicial to the rights of other holders of
such Senior Debt Securities or that may involve the Senior Trustee in personal
liability. The Senior Trustee may take any other action which it deems proper
which is not inconsistent with any such direction.
A holder of any Senior Debt Security of any series will have the right to
institute any proceeding with respect to the Senior Indenture or for any remedy
only if:
. the holder gives written notice to the Senior Trustee of a continuing event
of default under the Senior Indenture with respect to that series;
. the holders of at least 25% in principal amount of the outstanding Senior
Debt Securities of such series make a written request to the Senior Trustee
to pursue the remedy;
. such holder or holders offer, and if requested, provide the Senior Trustee
indemnity satisfactory to the Senior Trustee against any loss, liability or
expense;
. the Senior Trustee does not comply with the request within 60 days after
receiving the request and the offer and, if requested, the provision of
indemnity; and
. the Senior Trustee has not received directions inconsistent with such request
from the holders of a majority in principal amount of the outstanding Senior
Debt Securities of such series during such 60-day period.
The Senior Indenture also provides that a holder may not use the Senior
Indenture to prejudice the rights of another holder or to obtain a preference
or priority over another holder.
United HealthCare is required to deliver to the Senior Trustee an annual
certificate, signed by an officer, about any default by United HealthCare under
any provisions of the Senior Indenture.
CERTAIN PROVISIONS APPLICABLE TO SENIOR TRUSTEE
The Senior Indenture provides that prior to an event of default under the
Senior Indenture, the Senior Trustee is required to perform only the specific
duties stated in the Senior Indenture and, after an event of default under the
Senior Indenture, must exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. In the absence of bad
faith on its part, the Senior Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Senior Trustee and conforming to the
requirements of the Senior Indenture. However, the Senior Trustee is required
to examine such certificates and opinions to determine whether or not they
conform to the requirements of the Senior Indenture.
The Senior Indenture provides that the Senior Trustee with respect to a series
of Senior Debt Securities may resign at any time or may be removed by United
HealthCare or by the holders of a majority in principal amount of the
outstanding Senior Debt Securities of such series by notice delivered to the
Senior Trustee and United HealthCare. The Senior Indenture also provides that
the Senior Trustee must resign if it ceases to meet certain qualifications set
forth in the Senior Indenture. In the event of a Senior Trustee's resignation
or removal, United HealthCare or, if it fails to act, the holders of a majority
in principal amount of the outstanding Senior Debt Securities of the applicable
series, may appoint a successor Senior Trustee.
15
<PAGE>
DEFEASANCE PROVISIONS
The Senior Indenture provides that:
. United HealthCare shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Senior Debt Securities of a
series, and to have satisfied all its other obligations under the Senior Debt
Securities of such series and the Senior Indenture as it relates to such
series ("legal defeasance");
. United HealthCare may omit to comply with certain restrictive covenants under
the Senior Indenture and shall have no liability in respect of any term,
condition or limitation set forth in any such restrictive covenant, and such
omission to comply shall not constitute a default or an event of default with
respect to such series of Senior Debt Securities under the Senior Indenture
("covenant defeasance");
Provided that the following conditions shall have been satisfied:
. United HealthCare deposits with the Senior Trustee, in trust, sufficient
money or government obligations to pay the principal, interest, any premium
and any other sums due on a series of Senior Debt Securities on the dates
such payments are due under the Senior Indenture and the terms of the Senior
Debt Securities of such series;
. No event of default or default under the Senior Indenture shall have occurred
on the date of the deposit;
. United HealthCare shall have delivered to the Senior Trustee an opinion of
counsel which states that (i) holders of Senior Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance and (ii) after the 91st day following the deposit, the
deposited funds will not be subject to the effect of any applicable
bankruptcy law;
. The defeasance shall not result in a breach or violation of, or constitute a
default under the Senior Indenture or any other material agreement or
instrument to which United HealthCare is a party or by which United
HealthCare is bound;
. United HealthCare shall have delivered an Officers' Certificate that states
that (i) the deposit was not made with the intent of preferring the holders
of the Senior Debt Securities of the series to be defeased over other
creditors of United HealthCare and (ii) all conditions precedent applicable
to the legal defeasance or the covenant defeasance, as the case may be, have
been complied with.
MODIFICATION AND AMENDMENT OF INDENTURE
Under the Senior Indenture, United HealthCare's rights and obligations and the
rights of the holders of Senior Debt Securities may be changed. Certain changes
require the consent of the holders of not less than a majority in aggregate
principal amount of the outstanding Senior Debt Securities of each series of
Debt Securities affected by the modification or amendment. The following
changes, however, may not be made without the consent of each holder of the
outstanding Senior Debt Securities:
. changes to the stated maturity date of the principal or any interest
installment;
. reductions in the principal amount or interest due;
. changes to the place of payment or form of currency regarding payment of
principal;
. impairment of the right to institute suit for the enforcement of payment;
. reduction of the stated percentage of holders necessary to modify the Senior
Indenture; or
. modifications to any of these requirements, or modifications to reduce the
percentage of outstanding Senior Debt Securities
16
<PAGE>
necessary to waive compliance with certain provisions of the Senior Indenture
or to waive certain defaults.
GLOBAL SENIOR DEBT SECURITIES
The Senior Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on behalf
of, a depositary identified in the applicable prospectus supplement. The
specific terms of the depositary arrangements with respect to a series of
Senior Debt Securities will be described in the applicable prospectus
supplement. See "BOOK-ENTRY ISSUANCE."
DESCRIPTION OF SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be issued under the Subordinated
Indenture. The form of Subordinated Indenture has been filed as an exhibit to
the registration statement. The Subordinated Indenture will be qualified under
the Trust Indenture Act. The provisions of the Subordinated Indenture are
substantially identical in substance to the provisions of the Senior Indenture,
except for (1) the covenant relating to the limitation on Liens, which is not
included in the Subordinated Indenture, and (2) the subordination provisions
described below, for which there are no counterparts in the Senior Indenture.
See "DESCRIPTION OF DEBT SECURITIES--Description of Senior Debt Securities."
This section summarizes certain terms and provisions of the Subordinated
Indenture. The summary is not complete. You should read the form of
Subordinated Indenture for additional information before you buy any
Subordinated Debt Securities. Capitalized terms used but not defined under
"DESCRIPTION OF DEBT SECURITIES--Description of Subordinated Debt Securities"
have the meanings specified in the Subordinated Indenture.
SUBORDINATION
Subordinated Debt Securities will be subordinate and subject in right of
payment, in the manner and to the extent set forth in the Subordinated
Indenture, to the prior payment in full of all Senior Debt.
Upon any distribution to creditors of United HealthCare in a liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets and liabilities or any bankruptcy, insolvency
or similar proceeding involving United HealthCare, the holders of Senior Debt
will first be entitled to receive payment in full in cash of all Obligations
due on or to become due on or in respect of all Senior Debt, before the holders
of Subordinated Debt Securities are entitled to receive any payment or
distribution. ("Securities Payments").
Until the Senior Debt is paid in full, any Securities Payment to which the
holders of Subordinated Debt Securities or the Subordinated Trustee on behalf
of such holders would be entitled will be paid or delivered by United
HealthCare or other person making such payment or distribution, directly to the
holders of Senior Debt or their representative or representatives or the
trustee or trustees for application to all of the Senior Debt then due.
United HealthCare may not make any payments on the account of the Subordinated
Debt Securities, or on account of the purchase or redemption or other
acquisition of the Subordinated Debt Securities, if there has occurred and is
continuing a default in the payment of the principal of (or premium, if any) or
interest on any Senior Debt (a "Senior Payment Default").
In the event that the Subordinated Trustee receives any Securities Payment
prohibited by the subordination provisions of the Subordinated Indenture, such
payment will be
17
<PAGE>
held by such Subordinated Trustee in trust for the benefit of, and will
immediately be paid over upon written request to, the holders of Senior Debt or
their representative or representatives, or the trustee or trustees under any
applicable indenture for application to the payment of Senior Debt. Such
subordination will not prevent the occurrence of any event of default in
respect of the Subordinated Debt Securities.
For purposes of the foregoing, "Securities Payments" will be deemed not to
include:
. a payment or distribution of stock or securities of United HealthCare
provided for by a plan of reorganization or readjustment authorized by an
order or decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment which stock or
securities are subordinated in right of payment to all then outstanding
Senior Debt to the same extent as, or to a greater extent than, the
Subordinated Debt Securities are so subordinated as provided in the
Subordinated Indenture; or
. payments of assets from any defeasance trust which have been on deposit for
90 consecutive days without the occurrence of blockage of payment on any such
series of Subordinated Debt Securities as described above.
By reason of the subordination of the Subordinated Debt Securities, in the
event of the insolvency of United HealthCare, holders of Senior Debt may
receive more, ratably, and holders of the Subordinated Debt Securities having a
claim pursuant to such securities may receive less, ratably, than the other
creditors of United HealthCare. There may also be interruption of scheduled
interest and principal payments resulting from events of default on Senior
Debt.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Subordinated Indenture.
Please refer to the Subordinated Indenture for a full definition of all such
terms.
"Junior Subordinated Debt" means any Indebtedness of United HealthCare created
or evidenced by an instrument which expressly provides that such Indebtedness
is subordinated in right of payment to the Subordinated Debt Securities.
"Senior Debt" means all Indebtedness of United HealthCare, except
. Indebtedness under the Subordinated Debt Securities and Junior Subordinated
Debt Securities; and
. Indebtedness (including, without limitation, any Junior Subordinated Debt)
created or evidenced by an instrument which expressly provides that such
Indebtedness is subordinated in right of payment to any other Indebtedness of
United HealthCare.
Notwithstanding anything to the contrary in the foregoing, Senior Debt shall
not include:
. any Indebtedness of United HealthCare to any of its Subsidiaries or
certain other affiliates; and
. any Indebtedness incurred for the purchase of goods or materials or for
services obtained in the ordinary course of business (other than with the
proceeds of revolving credit borrowings permitted by the Subordinated
Indenture).
18
<PAGE>
DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES RELATED TO THE ISSUANCE
OF PREFERRED SECURITIES
GENERAL
The Junior Subordinated Debt Securities may be issued in one or more series
pursuant to the Junior Subordinated Indenture. A series of Junior Subordinated
Debt Securities initially will be issued to a trust in connection with a
preferred securities offering.
The Junior Subordinated Indenture will be qualified under the Trust Indenture
Act. A form of the Junior Subordinated Indenture is filed as an exhibit to the
registration statement relating to this prospectus.
Unless otherwise set forth in the prospectus supplement with respect to any
offered Junior Subordinated Debt Securities, the Junior Subordinated Debt
Securities will rank equally with all other series of Junior Subordinated Debt
Securities, will be unsecured and will be subordinate and junior in priority of
payment to certain of United HealthCare's other indebtedness as described below
under "Subordination." The Junior Subordinated Indenture does not limit the
amount of Junior Subordinated Debt Securities which United HealthCare may
issue, nor does it limit United HealthCare from issuing any other secured or
unsecured debt.
The applicable prospectus supplement will describe the following terms relating
to the Junior Subordinated Debt Securities:
. the title;
. any limit on the aggregate principal amount that may be issued;
. whether or not the Junior Subordinated Debt Securities will be issued in
global form, the terms and who the depositary will be;
. the maturity date(s);
. the annual interest rate(s) (which may be fixed or variable) or the method
for determining the rate(s) and the date(s) interest will begin to accrue,
the date(s) interest will be payable, United HealthCare's right, if any, to
defer payment of interest and the maximum length of any such deferral period,
compounding provisions and the record dates for interest payment dates or the
method for determining such date(s);
. the place(s) where payments shall be payable and where the Junior
Subordinated Debt Securities may be presented for registration of transfer or
exchange, and the place where notices and demands to or upon United
HealthCare may be made;
. period(s) within which or the date(s) on which, if any, and the price(s) at
which, the Junior Subordinated Debt Securities may, pursuant to any optional
redemption provisions, be redeemed at United HealthCare's option and other
related terms and provisions;
. the date(s), if any, on which, and the price(s) at which, United HealthCare
or a holder is obligated to redeem, or purchase or repay, the Junior
Subordinated Debt Securities and other related terms and provisions;
. the denominations in which the Junior Subordinated Debt Securities will be
issued, if other than denominations of $25 and any integral multiple thereof;
. any additions, modification or deletions in the events of default or
covenants, if any, other than those described in the Junior Subordinated
Indenture;
. the portion of the principal amount that shall be payable upon declaration of
acceleration of the maturity;
. any additions or changes as shall be necessary to permit or facilitate the
issuance of a series of Junior Subordinated Debt Securities in bearer form,
registrable or not registrable as to principal, and with or without coupons;
19
<PAGE>
. the index or indices used to determine the amount of payments and the manner
in which such amounts will be determined;
. the terms and conditions under which United HealthCare or a holder may
convert or exchange the Junior Subordinated Debt Securities into preferred
securities;
. the form of the trust agreement and Guarantee;
. the degree to which the Junior Subordinated Debt Securities will be senior or
subordinated to other Junior Subordinated Debt Securities or other
indebtedness of United HealthCare in right of payment; and
. any other terms (which terms shall not be inconsistent with the Junior
Subordinated Indenture).
Junior Subordinated Debt Securities may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates. Certain federal income tax
consequences and other special considerations applicable to any such Junior
Subordinated Debt Securities will be described in the applicable prospectus
supplement.
If the purchase price of any of the Junior Subordinated Debt Securities is
payable in one or more foreign currencies or currency units or if any Junior
Subordinated Debt Securities are denominated in one or more foreign currencies
or currency units or if the principal of, premium, if any, or interest, if any,
on any Junior Subordinated Debt Securities is payable in one or more foreign
currencies or currency units, the restrictions, elections, certain federal
income tax consequences, specific terms and other information with respect to
such issue of Junior Subordinated Debt Securities and such foreign currency or
currency units will be set forth in the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest on any series of Junior Subordinated Debt
Securities, special federal income tax, accounting and other considerations
applicable thereto will be described in the applicable prospectus supplement.
CONSOLIDATION, MERGER OR SALE
The Junior Subordinated Indenture provides that United HealthCare shall not
consolidate with or merge into any other person, or convey, transfer or lease
its properties and assets substantially as an entirety to any person and no
person shall consolidate with or merge into United HealthCare or convey,
transfer or lease its properties and assets substantially as an entirety to
United HealthCare, unless:
. the successor person formed by such consolidation or with which or into which
United HealthCare is merged or the person to which all or substantially all
of United HealthCare's properties and assets are conveyed, transferred or
leased is organized under the laws of the United States or any State or the
District of Columbia and expressly assumes all of United HealthCare's
obligations under the Junior Subordinated Debt Securities and the Junior
Subordinated Indenture;
. immediately after the transaction no event of default under the Junior
Subordinated Indenture, and no event which, after notice or lapse of time or
both, would become an event of default under the Junior Subordinated
Indenture, shall have occurred and be continuing;
. such transaction is permitted under the related trust agreement and the
related Guarantee; and
. certain other conditions prescribed in the Junior Subordinated Indenture are
met.
20
<PAGE>
EVENTS OF DEFAULT
The following are events of default under the Junior Subordinated Indenture
with respect to any series of Junior Subordinated Debt Securities issued:
. failure to pay interest when due within the terms set forth for a series of
securities and such failure continues for 30 days and the time for payment
has not been extended or deferred;
. failure to pay the principal (or premium, if any) when due;
. failure to observe or perform, in any material respect, any other covenant
contained in the Junior Subordinated Indenture and such failure continues for
a period of 90 days after United HealthCare receives notice from the Junior
Subordinated Trustee or holders of at least 25% in aggregate principal amount
of the outstanding Junior Subordinated Debt Securities of that series;
. certain events of bankruptcy, insolvency or reorganization; and
. any other event of default that may be specified for the Junior Subordinated
Debt Securities of that series when that series is created.
The holders of a majority in aggregate outstanding principal amount of such
series of Junior Subordinated Debt Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Junior Subordinated Trustee. If an event of default under the Junior
Subordinated Indenture of any series occurs and is continuing, the Junior
Subordinated Trustee or the holders of at least 25% in aggregate principal
amount of the outstanding Junior Subordinated Debt Securities of that series
may declare the unpaid principal of and accrued interest, if any, to the date
of acceleration on all the outstanding Junior Subordinated Debt Securities of
that series to be due and payable immediately. Similarly, in the case of
Corresponding Junior Subordinated Debt Securities, if the Junior Subordinated
Trustee or the holders of such Corresponding Junior Subordinated Debt
Securities fail to make such declaration, the holders of at least 25% in
aggregate liquidation preference of the related preferred securities shall have
that right.
The holders of a majority in aggregate outstanding principal amount of Junior
Subordinated Debt Securities of the affected series may rescind a declaration
of acceleration or waive the default if the default has been cured and a sum
sufficient to pay all principal and interest due has been deposited with the
Junior Subordinated Trustee. In the case of Corresponding Junior Subordinated
Debt Securities, if the holders of such Corresponding Junior Subordinated Debt
Securities fail to rescind such declaration and waive such default, the holders
of a majority in aggregate liquidation preference of the related preferred
securities shall have that right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities of an affected series may waive any default
or event of default under the Junior Subordinated Indenture with respect to
such series and its consequences, except:
. defaults or events of default regarding payment of principal, premium or
interest, unless such default has been cured or a sum sufficient to pay all
outstanding amounts of principal and interest has been deposited with the
Junior Subordinated Trustee; or
. provisions of the Junior Subordinated Indenture that cannot be modified
without the consent of all the holders of the affected series.
The Junior Subordinated Indenture requires that United HealthCare periodically
file certificates with the Junior Subordinated Trustee regarding its compliance
with all conditions and
21
<PAGE>
covenants applicable to it under the Junior Subordinated Indenture.
OPTION TO EXTEND INTEREST PAYMENT DATES
If provided in the applicable prospectus supplement, United HealthCare may, at
any time and from time to time during the term of any series of Junior
Subordinated Debt Securities, defer payment of interest for such number of
consecutive interest payment periods as may be specified in the applicable
prospectus supplement ("Extension Period"). However, no Extension Period may
extend beyond the maturity date of such series of Junior Subordinated Debt
Securities.
Certain federal income tax consequences and special considerations applicable
to any such Junior Subordinated Debt Securities that permit Extension Periods
will be described in the applicable prospectus supplement.
REDEMPTION
Unless otherwise indicated in the applicable prospectus supplement, Junior
Subordinated Debt Securities will not be subject to any sinking fund.
Unless otherwise indicated in the applicable prospectus supplement, United
HealthCare has the option to redeem the Junior Subordinated Debt Securities of
any series:
. in whole at any time or in part from time to time; or
. upon the occurrence of a Tax Event or Investment Company Event in whole (but
not in part) at any time within 90 days of the occurrence of such Tax Event
or Investment Company Event.
Except as otherwise specified in the applicable prospectus supplement, Junior
Subordinated Debt Securities will be redeemed at the
Redemption Price as defined on page 43. Junior Subordinated Debt Securities in
denominations larger than $25 may be redeemed in part but only in integral
multiples of $25.
"Tax Event" means that United HealthCare will have received an opinion of
counsel (which may be counsel to United HealthCare or an affiliate but not an
employee and which must be reasonably acceptable to the Property Trustee)
experienced in such matters to the effect that, as a result of any:
. amendment to, or change (including any announced prospective change) in, the
laws (or any regulations under those laws) of the United States or any
political subdivision or taxing authority affecting taxation; or
. interpretation or application of such laws or regulations by any court,
governmental agency or regulatory authority;
there is more than an insubstantial risk that:
. a trust is, or will be within 90 days of the date of the opinion of counsel,
subject to United States federal income tax with respect to interest received
on the Junior Subordinated Debt Securities;
. interest payable by United HealthCare to the trusts on the Junior
Subordinated Debt Securities is not, or will not be within 90 days of the
date of the opinion of counsel, deductible, in whole or in part, for United
States federal income tax purposes; or
. a trust is, or will be within 90 days of the date of the opinion of counsel,
subject to more than a minimal amount of other taxes, duties, assessments or
other governmental charges.
It has been reported that the IRS recently challenged another company's
deduction for interest paid on a debt instrument similar in some respects to
the Junior Subordinated Debt Securities and issued to entities similar to the
trusts. Based on available information, United HealthCare and the trusts do not
believe that this challenge will affect United HealthCare's
22
<PAGE>
ability to deduct interest payments on the Junior Subordinated Debt Securities.
However, you should be aware that further developments favoring the IRS's
challenge, or other unrelated developments, could cause a Tax Event. Laws and
regulations have also been proposed in the past which, if adopted
retroactively, could also cause a Tax Event.
An "Investment Company Event" means the receipt by United HealthCare and a
trust of an opinion of counsel experienced in such matters to the effect that,
as a result of any change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, such trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which change becomes effective on or after the original issuance
of the preferred securities.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the date of redemption to each holder of redeemable Junior
Subordinated Debt Securities at its registered address. Unless United
HealthCare defaults in payment of the Redemption Price, on and after the date
of redemption interest will cease to accrue on such Junior Subordinated Debt
Securities or portions thereof called for redemption.
United HealthCare has the right to terminate any trust at its option, which
could include termination in the context of a Tax Event or an Investment
Company Act. See "DESCRIPTION OF PREFERRED SECURITIES--Redemption or Exchange."
RESTRICTIONS ON CERTAIN PAYMENTS
United HealthCare will also covenant, as to each series of Junior Subordinated
Debt Securities, that it will not, and will not permit any subsidiary of United
HealthCare to (a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of United
HealthCare's capital stock, or (b) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of
United HealthCare (including other Junior Subordinated Debt Securities) that
rank equally with or junior in interest to the Junior Subordinated Debt
Securities or make any guarantee payments with respect to any guarantee by
United HealthCare of the debt securities of any subsidiary of United HealthCare
(including under other Guarantees) if such guarantee ranks equally or junior in
interest to the Junior Subordinated Debt Securities, if at such time:
. United HealthCare has actual knowledge of an event that with the giving of
notice or the lapse of time, or both, would constitute an event of default
under the Junior Subordinated Indenture and United HealthCare shall not have
taken reasonable steps to cure such event of default;
. such Junior Subordinated Debt Securities are held by a trust that is the
issuer of a series of related preferred securities and United HealthCare is
in default with respect to its payment obligations under the Guarantee
relating to such related preferred securities; or
. United HealthCare shall have given notice of its selection of an Extension
Period with respect to the Junior Subordinated Debt Securities of such series
and shall not have rescinded such notice, or such Extension Period, or any
extension thereof, shall be continuing.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an event of default under the Junior Subordinated Indenture has occurred and
is
23
<PAGE>
continuing and such event is attributable to the failure of United HealthCare
to pay interest or principal on the related Junior Subordinated Debt Securities
when due, you may institute a legal proceeding directly against United
HealthCare for enforcement of payment of the principal of or interest on such
related Junior Subordinated Debt Securities having a principal amount equal to
the aggregate liquidation amount of your preferred securities ("Direct
Action"). United HealthCare may not amend the Junior Subordinated Indenture to
remove the foregoing right to bring a Direct Action without your prior written
consent. If the right to bring a Direct Action is removed, the applicable trust
may become subject to the reporting obligations under the Exchange Act. United
HealthCare shall have the right under the Junior Subordinated Indenture to set-
off any payment made to you in connection with a Direct Action.
You would not be able to exercise directly any remedies other than those set
forth in the preceding paragraph available to the holders of the Junior
Subordinated Debt Securities unless there shall have been an event of default
under the trust agreement. See "DESCRIPTION OF PREFERRED SECURITIES--Events of
Default; Notice."
If an event of default under the Junior Subordinated Indenture shall occur and
be continuing as to a series of Corresponding Junior Subordinated Debt
Securities, the Property Trustee will have the right to declare the principal
of and interest on such Corresponding Junior Subordinated Debt Securities to be
due and payable, and to enforce any other rights as a creditor with respect to
such Junior Subordinated Debt Securities.
MODIFICATION OF INDENTURE
United HealthCare and the Junior Subordinated Trustee may change the Junior
Subordinated Indenture without your consent with respect to certain matters,
including:
. to fix any ambiguity, defect or inconsistency, provided that such change does
not materially adversely affect the interests of any holder of Junior
Subordinated Debt Securities of any series or, in the case of Corresponding
Junior Subordinated Debt Securities, your interest as a holder of any related
preferred securities; and
. to qualify or maintain the qualification of the Junior Subordinated Indenture
under the Trust Indenture Act.
In addition, under the Junior Subordinated Indenture, United HealthCare's
rights and obligations and the rights of holders of the Junior Subordinated
Debt Securities may be changed by United HealthCare and the Junior Subordinated
Trustee with the written consent of the holders of a majority in principal
amount of the outstanding Junior Subordinated Debt Securities of each series
that is affected. However, United HealthCare and the Junior Subordinated
Trustee may not take the following actions without the consent of each holder
of any outstanding Junior Subordinated Debt Securities affected:
. change the maturity date of any series of Junior Subordinated Debt
Securities, reduce the principal amount, or reduce the rate of interest or
extend the time of payment;
. reduce the percentage in principal amount of outstanding Junior Subordinated
Debt Securities of any series necessary to modify the Junior Subordinated
Indenture;
. modify certain provisions of the Junior Subordinated Indenture relating to
modification or waiver; or
. modify the provisions of the Junior Subordinated Indenture relating to the
subordination of outstanding Junior Subordinated Debt Securities in a manner
24
<PAGE>
adverse to the holders, provided that, in the case of Corresponding Junior
Subordinated Debt Securities, so long as the related preferred securities are
outstanding, no modification shall be made that adversely affects your
interest as holders of any related preferred securities in any material
respect.
In addition, United HealthCare and the Junior Subordinated Trustee may enter
into any supplemental indenture for the purposes of creating any new series of
Junior Subordinated Debt Securities, without the consent of the holders.
SATISFACTION AND DISCHARGE
The Junior Subordinated Indenture provides that when all Junior Subordinated
Debt Securities of any series not previously canceled:
. have become due and payable; or
. will become due and payable within one year and
(a) United HealthCare deposits with the Junior Subordinated Trustee money
sufficient to pay and discharge all remaining indebtedness on the Junior
Subordinated Debt Securities of that series;
(b) delivers to the Junior Subordinated Trustee an opinion of counsel and an
officers' certificate; and
(c) complies with certain other Junior Subordinated Indenture requirements,
then the Junior Subordinated Indenture will cease to be of further effect and
United HealthCare shall be deemed to have satisfied and discharged the Junior
Subordinated Indenture.
CONVERSION OR EXCHANGE
If indicated in the applicable prospectus supplement, the Junior Subordinated
Debt Securities of any series may be convertible or exchangeable into preferred
securities or other securities. The specific terms on which Junior Subordinated
Debt Securities of any series may be so converted or exchanged will be set
forth in the applicable prospectus supplement. Such terms may include
provisions for conversion or exchange, either mandatory, at the option of the
holder, or at the option of United HealthCare, in which case the number of
shares of preferred securities or other securities to be received by the
holders of Junior Subordinated Debt Securities would be calculated as of a time
and in the manner stated in the applicable prospectus supplement.
If provided in the applicable prospectus supplement, United HealthCare shall
have the right to extend or shorten the maturity of any series of Corresponding
Junior Subordinated Debt Securities at the time that United HealthCare
exercises its right to liquidate the related trust and cause such Corresponding
Junior Subordinated Debt Securities to be distributed to the holders of the
related preferred securities and common securities in liquidation of the trust,
provided that it can extend the maturity only if certain conditions specified
in the prospectus supplement are met at the time such election is made and at
the time of such extension.
SUBORDINATION
The payment of the principal of and premium, if any, and any interest on the
Junior Subordinated Debt Securities will be subordinated in right of payment to
the Senior and Subordinated Debt (as defined below).
Upon any payment or distribution of assets to creditors upon United
HealthCare's dissolution, liquidation, winding up, reorganization, whether
voluntary or involuntary, assignment for the benefit of creditors, marshaling
of assets or any bankruptcy, insolvency, debt restructuring or similar
proceedings, the holders of Senior and
25
<PAGE>
Subordinated Debt will first be entitled to receive payment in full of the
principal, premium or interest due before the holders of the Junior
Subordinated Debt Securities, or in the case of Corresponding Junior
Subordinated Debt Securities, the Property Trustee, on behalf of the holders,
will be entitled to receive any payment or distribution.
In the event of acceleration of the maturity of any series of Junior
Subordinated Debt Securities, the holders of Senior and Subordinated Debt will
first be entitled to receive payment in full of all amounts due on such Senior
and Subordinated Debt before holders of Junior Subordinated Debt Securities.
No payment by or on behalf of United HealthCare of principal, premium or
interest on the Junior Subordinated Debt Securities, shall be made if, at the
time of such payment, there exists:
. a default in the payment of all or any portion of any Senior and Subordinated
Debt or any other default pursuant to which the maturity of any Senior and
Subordinated Debt has been accelerated; and
. any judicial proceeding, relating to such defaults, shall be pending.
"Debt" means, with respect to any person, whether recourse is to all or a
portion of the assets of such person and whether or not contingent:
. every obligation of such person for money borrowed;
. every obligation of such person evidenced by bonds, debt securities, notes or
other similar instruments, including obligations incurred in connection with
the acquisition of property, assets or businesses;
. every reimbursement obligation of such person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such person;
. every obligation of such person issued or assumed as the deferred purchase
price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business);
. every capital lease obligation of such person;
. all indebtedness of such person, whether incurred on or prior to the date of
the Junior Subordinated Indenture or thereafter incurred, for claims in
respect of derivative products including interest rate, foreign exchange rate
and commodity forward contracts, options and swaps and similar arrangements;
and
. every obligation of the type referred to in the first through sixth bullets
above of another person and all dividends of another person the payment of
which, in either case, such person has guaranteed or is responsible or
liable, directly or indirectly, as obligor or otherwise.
"Senior and Subordinated Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to United HealthCare
whether or not such claim for post-petition interest is allowed in such
proceeding), on Debt of United HealthCare whether incurred on or prior to the
date of the Junior Subordinated Indenture or thereafter incurred, unless, in
the instrument creating or evidencing such Debt or pursuant to which such Debt
is outstanding, it is provided that such obligations are not superior in right
of payment to the Junior Subordinated Debt Securities or to other Debt which
ranks equally to, or subordinated to, the Junior Subordinated Debt Securities.
However, Senior and Subordinated Debt shall not be deemed to include:
. any Debt of United HealthCare which, when incurred and without respect to any
election under section 1111(b) of the United States
26
<PAGE>
Bankruptcy Code of 1978, as amended, was without recourse to United
HealthCare;
. any Debt of United HealthCare to any of its subsidiaries;
. Debt to any employee of United HealthCare; and
. any other debt securities issued pursuant to the Junior Subordinated
Indenture.
DENOMINATIONS, REGISTRATION, AND TRANSFER
The Junior Subordinated Debt Securities of each series will be issuable only in
fully registered form without coupons and, unless otherwise specified in the
applicable prospectus supplement, in denominations of $25 and any integral
multiple thereof.
At the option of the holder, subject to the terms of the Junior Subordinated
Indenture and the limitations applicable to global securities described in the
applicable prospectus supplement, Junior Subordinated Debt Securities of any
series will be exchangeable for other Junior Subordinated Debt Securities of
the same issue and series, in any authorized denomination of a like aggregate
principal amount, of the same date of issuance and maturity and bearing the
same interest rate.
Subject to the terms of the Junior Subordinated Indenture and the limitations
applicable to global securities set forth in the applicable prospectus
supplement, Junior Subordinated Debt Securities may be presented for exchange
or for registration of transfer (duly endorsed or with the form of transfer
endorsed thereon, or a satisfactory written instrument of transfer, duly
executed) at the office of the Security Registrar or at the office of any
transfer agent designated by United HealthCare for such purposes.
Unless otherwise provided in the prospectus supplement, no service charge will
be made for any registration of transfer or exchange, and upon payment of any
taxes or other governmental charges. United HealthCare has appointed the Junior
Subordinated Trustee as Security Registrar for the Junior Subordinated Debt
Securities. Any transfer agent (in addition to the Security Registrar)
initially designated by United HealthCare for any Junior Subordinated Debt
Securities will be named in the applicable prospectus supplement. United
HealthCare may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the location through
which any transfer agent acts, except that United HealthCare will be required
to maintain a transfer agent in each place of payment for the Junior
Subordinated Debt Securities of each series.
If the Junior Subordinated Debt Securities of any series are to be redeemed,
neither United HealthCare nor the Junior Subordinated Trustee will be required
to:
. issue, register the transfer of, or exchange any Junior Subordinated Debt
Securities of that series during a period beginning on the business day that
is 15 days before the day of mailing of a notice of redemption of any such
Junior Subordinated Debt Securities that may be selected for redemption and
ending at the close of business on the day of mailing of the relevant notice;
or
. transfer or exchange any Junior Subordinated Debt Securities so selected for
redemption, except the unredeemed portion of any Junior Subordinated Debt
Securities being redeemed in part.
GLOBAL JUNIOR SUBORDINATED DEBT SECURITIES
The Junior Subordinated Debt Securities of a series may be issued in whole or
in part in the form of one or more global securities that will be deposited
with, or on behalf of, a depositary identified in the applicable prospectus
supplement. The specific terms of the
27
<PAGE>
depositary arrangements with respect to a series of Junior Subordinated Debt
Securities will be described in the applicable prospectus supplement. See
"BOOK-ENTRY ISSUANCE."
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment of
the interest on any Junior Subordinated Debt Securities on any interest payment
date will be made to the person in whose name such Junior Subordinated Debt
Securities (or one or more predecessor securities) is registered at the close
of business on the record date for such interest.
Principal of and any premium and interest on the Junior Subordinated Debt
Securities of a particular series will be payable at the office of the Junior
Subordinated Trustee in the City of New York or at the office of the paying
agents designated by United HealthCare from time to time in the applicable
prospectus supplement, except that unless otherwise indicated in the prospectus
supplement, interest payments may be made by check mailed to the holder or
transferred to an account maintained by such holder.
All moneys deposited with the Junior Subordinated Trustee or any paying agent,
or then held by United HealthCare in trust, for the payment of the principal of
or any premium or interest on any Junior Subordinated Debt Security which
remains unclaimed at the end of two years after such principal, premium or
interest has become due and payable will be repaid to United HealthCare, and
you may thereafter look only to United HealthCare for payment thereof.
GOVERNING LAW
The Junior Subordinated Indenture will be governed by and construed in
accordance with the laws of the State of New York except to the extent that the
Trust Indenture Act shall be applicable.
INFORMATION CONCERNING THE JUNIOR SUBORDINATED TRUSTEE
The Junior Subordinated Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Junior Subordinated Trustee is
under no obligation to exercise any of the powers vested in it by the Junior
Subordinated Indenture at the request of any holder of Junior Subordinated Debt
Securities, unless offered reasonable indemnity by such holder against the
costs, expenses and liabilities which might be incurred thereby.
CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES
The Corresponding Junior Subordinated Debt Securities may be issued in one or
more series of Junior Subordinated Debt Securities under the Junior
Subordinated Indenture with terms corresponding to the terms of a series of
related preferred securities. Concurrently with the issuance of each trust's
preferred securities, such trust will invest the proceeds thereof and the
consideration paid by United HealthCare for the related common securities in a
series of Corresponding Junior Subordinated Debt Securities. Each series of
Corresponding Junior Subordinated Debt Securities will be in the principal
amount equal to the aggregate stated Liquidation Amount of the related
preferred securities and the common securities of such trust and will rank
equally with all other series of Junior Subordinated Debt Securities. As a
holder of the related preferred securities for a series of Corresponding Junior
Subordinated Debt Securities you will have rights in connection with
modifications to the Junior Subordinated Indenture or upon occurrence of events
of default under the Junior Subordinated
28
<PAGE>
Indenture described above under "Modification of Indenture" and "Events of
Default," unless provided otherwise in the prospectus supplement for such
related preferred securities.
Unless otherwise specified in the applicable prospectus supplement, if a Tax
Event in respect of a trust of related preferred securities shall occur and be
continuing, United HealthCare has the option to redeem the related Junior
Subordinated Debt Securities at any time within 90 days of the occurrence of
such Tax Event, in whole but not in part, at the Redemption Price. If a trust
continues to hold all the outstanding series of Corresponding Junior
Subordinated Debt Securities, the proceeds of any such redemption will be used
by such trust to redeem the corresponding preferred securities and common
securities in accordance with their terms. United HealthCare may not redeem a
series of Corresponding Junior Subordinated Debt Securities in part, unless all
accrued and unpaid interest has been paid in full on all outstanding
Corresponding Junior Subordinated Debt Securities of such series.
United HealthCare will covenant in the Junior Subordinated Indenture that if
and so long as:
. the trust of the related series of preferred securities and common securities
is the holder of all such Corresponding Junior Subordinated Debt Securities;
. a Tax Event in respect of such trust has occurred and is continuing; and
. United HealthCare has elected, and has not revoked such election, to pay
Additional Sums (as defined on page 44) in respect of such preferred
securities and common securities,
United HealthCare will pay to such trust such Additional Sums.
United HealthCare will also covenant:
. to maintain directly or indirectly 100% ownership of the common securities of
the trust to which Corresponding Junior Subordinated Debt Securities have
been issued (provided that certain successors which are permitted pursuant to
the Junior Subordinated Indenture may succeed to United HealthCare's
ownership of the common securities);
. not to voluntarily terminate, wind-up or liquidate any trust except (a) in
connection with a distribution of Corresponding Junior Subordinated Debt
Securities to you in liquidation of such trust, or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the related
trust agreement; and
. to use its reasonable efforts, consistent with the terms and provisions of
the related trust agreement, to cause such trust to remain classified as a
grantor trust and not as an association taxable as a corporation for federal
income tax purposes.
DESCRIPTION OF PREFERRED STOCK
This section describes the general terms and provisions of the preferred stock
that may be offered by this prospectus. The prospectus supplement will describe
the specific terms of the series of the preferred stock offered under that
prospectus supplement and any general terms outlined in this section that will
not apply to that series of preferred stock.
This section summarizes certain terms and provisions of the preferred stock.
The summary is not complete. United HealthCare has filed a form of Certificate
of Designation, Preferences and Rights of preferred stock as an exhibit to the
registration statement. You should read United HealthCare's second restated
articles of incorporation and the Certificate of
29
<PAGE>
Designation, Preferences and Rights ("Certificate of Designation") relating to
the applicable series of preferred stock for additional information before you
buy any preferred stock.
GENERAL
Under United HealthCare's second restated articles of incorporation, as
amended, United HealthCare is authorized to issue up to 10,000,000 shares of
preferred stock, $.001 par value. United HealthCare's board of directors may
issue from time to time additional shares of preferred stock in one or more
series and with such relative rights and preferences and at such times and for
such consideration as the board of directors may determine.
The board of directors may determine the following for each series of preferred
stock:
. the number of shares and designation of such series;
. dividend rights;
. whether and upon what terms the shares will be redeemable;
. whether and upon what terms the shares will have a sinking fund to be used to
purchase or redeem the shares of such series;
. whether and upon what terms the shares will be convertible;
. the restrictions, if any, on the issue or reissue of any additional preferred
stock, including increases or decreases in the number of shares of any series
subsequent to the issue of shares of that series;
. the rights of the holders of the shares of such series upon United
HealthCare's dissolution or the distribution of United HealthCare's assets;
and
. the voting rights, if any, which will apply.
As described under "DESCRIPTION OF DEPOSITARY SHARES" below, United HealthCare
may elect to offer Depositary Shares represented by Depositary Receipts. If
United HealthCare so elects, each Depositary Share will represent a fractional
interest (to be specified in the applicable prospectus supplement) in a share
of preferred stock. If United HealthCare issues Depositary Shares representing
interests in shares of preferred stock, those shares of preferred stock will be
deposited with a Depositary (as defined on page 35).
The Preferred Stock will have the dividend, liquidation, redemption, voting and
conversion and exchange rights described in this section unless the applicable
prospectus supplement provides otherwise. You should read the prospectus
sSupplement relating to the particular series of the preferred stock being
offered for specific terms, including:
. the title and liquidation preference of the preferred stock and the number of
shares offered;
. the initial public offering price at which United HealthCare will issue the
preferred stock;
. the dividend rate or rates (or method of calculation), the dividend periods,
the dates on which dividends will be payable and whether the dividends will
be cumulative or noncumulative and, if cumulative, the dates from which the
dividends will start to cumulate;
. any redemption or sinking fund provisions;
. any conversion or exchange provisions;
. whether we have elected to offer Depositary Shares as described under
"DESCRIPTION OF DEPOSITORY SHARES" below; and
. any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
30
<PAGE>
When United HealthCare issues shares of preferred sto ck, such shares will be
fully paid and nonassessable (i.e., the full purchase price for the outstanding
shares of preferred stock will have been paid and the holders of such shares
will not be assessed any additional monies for such shares). The preferred
stock will have no preemptive rights to subscribe for any additional securities
which may be issued by United HealthCare in the future (i.e., the holders of
shares of preferred stock will have no right, as holders of shares of preferred
stock, to buy any portion of those issued securities). The transfer agent and
registrar for the preferred stock and any Depositary Shares will be specified
in the applicable prospectus supplement.
DIVIDENDS
Subject to the preferential rights as to dividends of holders of any other
capital stock of United HealthCare ranking prior to any series of the preferred
stock, the holders of each series of preferred stock will be entitled to
receive cash dividends, if declared by United HealthCare's board of directors
or its duly authorized committee, out of the assets that United HealthCare can
legally use to pay dividends. The prospectus supplement relating to a
particular series of preferred stock will set forth the dividend rates and
dates on which dividends will be payable. The rates may be fixed or variable or
both. If the dividend rate is variable, the applicable prospectus supplement
will describe the formula used for determining the dividend rate for each
dividend period. United HealthCare will pay dividends to the holders of record
as they appear on United HealthCare's stock books on the record dates fixed by
its board of directors or its duly authorized committee.
The applicable prospectus supplement will also state whether the dividends on
any series of the preferred stock are cumulative or noncumulative. If United
HealthCare's board of directors does not declare a dividend payable on a
dividend payment date on any noncumulative series of preferred stock, then the
holders of that series will not be entitled to receive a dividend for that
dividend period and United HealthCare will not be obligated to pay the dividend
for that dividend period even if the board of directors declares a dividend on
that series payable in the future.
United HealthCare's board of directors will not declare and pay a dividend on
any United HealthCare stock ranking, as to dividends, equal with or junior to
the preferred stock unless full dividends on the preferred stock have been
declared and paid (or declared and sufficient money is set aside for payment).
Until full dividends are paid (or declared and payment is set aside) on any
capital stock of United HealthCare ranking equal with the preferred stock as to
dividends ("Parity Dividend Stock"), then:
. United HealthCare will declare any dividends pro rata among the preferred
stock of each series offered under this prospectus and any other series of
preferred stock ranking equal to the preferred stock of each series offered
under this prospectus as to dividends (i.e., the dividends United HealthCare
declares per share on each series of such preferred stock will bear the same
relationship to each other that the full accrued dividends per share on each
such series of the preferred stock bear to each other);
. other than such pro rata dividends, United HealthCare will not declare or pay
any dividends or declare or make any distributions upon any security ranking
junior to or equal with the preferred stock offered under this prospectus as
to dividends or upon liquidation (except dividends or distributions paid for
with securities ranking junior to the
31
<PAGE>
preferred stock as to dividends and upon liquidation); and
. United HealthCare will not redeem, purchase or otherwise acquire (or set
aside money for a sinking fund for) any securities ranking junior to or equal
with the preferred stock as to dividends or upon liquidation (except by
conversion into or exchange for stock junior to the preferred stock as to
dividends and upon liquidation).
REDEMPTION AND REPURCHASE
A series of the preferred stock may be redeemable, in whole or in part, at
United HealthCare's option, and may be subject to mandatory redemption pursuant
to a sinking fund or otherwise, as described in the applicable prospectus
supplement. Redeemed preferred stock will become authorized but unissued shares
of preferred stock that United HealthCare may issue in the future.
If a series of the preferred stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that United
HealthCare will redeem each year and the redemption price. If shares of
preferred stock are redeemed, United HealthCare will pay all accrued and unpaid
dividends on those shares to, but excluding, the redemption date. The
prospectus supplement also will specify whether the redemption price will be
paid in cash or other property.
If fewer than all of the outstanding shares of any series of the preferred
stock are to be redeemed, United HealthCare's board of directors will determine
the number of shares to be redeemed. United HealthCare will redeem the shares
pro rata from the holders of record in proportion to the number of shares held
by them (with adjustments to avoid redemption of fractional shares).
Even though the terms of a series of preferred stock may permit redemption of
the preferred stock in whole or in part, if any dividends, including
accumulated dividends, on that series are past due, United HealthCare will not
redeem less than all of the shares of such series of preferred stock until all
dividends past due have been paid.
United HealthCare will give notice of a redemption by mailing a notice to each
record holder of the shares to be redeemed, between 30 to 60 days prior to the
date fixed for redemption (unless United HealthCare issues Depositary Shares
representing interests in preferred stock, in which case United HealthCare will
send a notice to the Depositary between 40 to 70 days prior to the date fixed
for redemption). United HealthCare will mail the notices to the holders'
addresses as they appear on United HealthCare's stock records. Each notice will
state:
. the redemption date;
. the redemption price;
. the place or places where holders can surrender the certificates for the
preferred stock for payment of the redemption price; and
. that dividends on the shares to be redeemed will cease to accrue on the
redemption date.
If United HealthCare redeems fewer than all shares of any series of the
preferred stock held by any holder, it also will specify in the notice the
number of shares to be redeemed from the holder.
If United HealthCare has given notice of the redemption and has provided the
funds for the payment of the redemption price, then beginning on the redemption
date:
. the dividends on the shares of preferred stock called for redemption will no
longer accrue;
. such shares will no longer be considered outstanding; and
32
<PAGE>
. the holders will no longer have any rights as shareholders except to receive
the redemption price.
When the holder properly surrenders the redeemed shares, the redemption price
will be paid out of the funds provided by United HealthCare. If United
HealthCare redeems fewer than all of the shares represented by any certificate,
it will issue a new certificate representing the unredeemed shares without cost
to the holder.
CONVERSION AND EXCHANGE
If any series of offered preferred stock is convertible into common stock at
the option of the holders or exchangeable for common stock at the option of
United HealthCare, the prospectus supplement relating to such series will
include the terms and conditions governing such conversions and exchanges.
RIGHTS UPON LIQUIDATION
Unless the applicable prospectus supplement states otherwise, if United
HealthCare voluntarily or involuntarily liquidates, dissolves or winds up its
business, the holders of shares of each series of the preferred stock will be
entitled to receive:
. liquidation distributions in the amount stated in the applicable prospectus
supplement; and
. all accrued and unpaid dividends (whether or not declared).
United HealthCare will pay these amounts to the holders of shares of each
series of the preferred stock, and all amounts owing on any preferred stock
ranking equally with such series of preferred stock as to distributions upon
liquidation, out of its assets available for distribution to shareholders
before any distribution is made to holders of any securities ranking junior to
the series of preferred stock upon liquidation.
Neither a sale of all or substantially all of United HealthCare's property and
assets, nor a consolidation or merger of United HealthCare, will be considered
a dissolution, liquidation or winding up of United HealthCare's business.
If (1) United HealthCare voluntarily or involuntarily liquidates, dissolves or
winds up its business and (2) the assets available for distribution to the
holders of the preferred stock of any series and any other shares of United
HealthCare stock ranking equal with such series as to any such distribution are
insufficient to pay all amounts to which the holders are entitled, then United
HealthCare will only make pro rata distributions to the holders of all shares
ranking equal as to distributions upon dissolution, liquidation or winding up
of United HealthCare's business (i.e., the distributions United HealthCare pays
to the holders of all shares ranking equal as to distributions upon
dissolution, liquidation or winding up of United HealthCare's business will
bear the same relationship to each other that the full distributable amounts
for which such holders are respectively entitled upon such dissolution,
liquidation or winding up of United HealthCare's business bear to each other).
After United HealthCare pays the full amount of the liquidation distribution to
which the holders of a series of the preferred stock are entitled, such holders
will have no right or claim to any of United HealthCare's remaining assets.
VOTING RIGHTS
Unless otherwise provided in the prospectus supplement relating to an offered
series of preferred stock, the holders of such preferred stock will not have
any voting rights except as set forth below or as otherwise from time to time
required by law.
If such preferred stock is cumulative preferred stock, whenever dividends on
such preferred
33
<PAGE>
stock are in arrears in an amount equal to at least six dividends (whether or
not consecutive), the holders of such preferred stock (voting separately as a
single class with all other affected classes or series of Parity Dividend Stock
upon which like voting rights have been conferred and are then exercisable)
will be entitled to vote for and elect two additional directors. Such right of
the holders of such preferred stock to vote for the election of such two
directors may be exercised at any annual meeting or at any special meeting
called for such purpose or at any adjournment thereof, until dividends in
default on such outstanding shares of such preferred stock shall have been paid
in full (or such dividends shall have been declared and funds sufficient
therefor set apart for payment), at which time the term of office of the two
directors so elected shall terminate automatically (subject to revesting in the
event of each and every subsequent default of the character specified in the
preceding sentence and to any continuing rights of holders of such Parity
Dividend Stock). If at any such annual or special meeting or any adjournment
thereof the holders of a majority of the then outstanding shares of such
preferred stock (and of such Parity Dividend Stock, if any) entitled to vote in
such election shall be present or represented by proxy, then the authorized
number of directors of United HealthCare shall be increased by two, and the
holders of such preferred stock (voting separately as a single class with all
such Parity Dividend Stock, if any) shall be entitled to elect such two
additional directors. Directors so elected shall serve until the next annual
meeting or until their successors shall be elected and shall qualify, unless
the term of office of the persons so elected as directors shall have terminated
by virtue of the payment in full of all dividends in arrears (or such dividends
shall have been declared and funds sufficient therefor set apart for payment).
In case of any vacancy occurring among the directors so elected by the holders
of such preferred stock (and of such Parity Dividend Stock, if any), the
remaining director who shall have been so elected may appoint a successor to
hold office for the unexpired term of the director whose place shall be vacant,
and such successor shall be deemed to have been elected by the holders of such
preferred stock (and of such Parity Dividend Stock, if any). If both directors
so elected by the holders of such preferred stock (and of such Parity Dividend
Stock, if any) shall cease to serve as directors before their terms shall
expire, the holders of such preferred stock (and of such Parity Dividend Stock,
if any) then outstanding and entitled to vote for such directors may, at a
special meeting of such holders called as provided above, elect successors to
hold office for the unexpired terms of the directors whose places shall be
vacant. If holders of such preferred stock become entitled to vote for
directors pursuant to the foregoing provisions, they will not have the right to
cumulate their votes.
Unless otherwise provided in the prospectus supplement relating to an offered
series of preferred stock, United HealthCare will not authorize, create or
issue any shares of any other class or series of capital stock ranking senior
to such preferred stock as to dividends or upon liquidation without the consent
or affirmative vote of the holders of at least a majority of the outstanding
shares of such preferred stock.
A s more fully described under "DESCRIPTION OF DEPOSITARY SHARES" below, if
United HealthCare elects to provide for the issuance of Depositary Shares
representing fractional interests in a share of preferred stock, the holders of
each Depositary Share will be entitled to a fraction of a vote.
34
<PAGE>
DESCRIPTION OF COMMON STOCK
A description of United HealthCare's common stock is included in the
registration statement on Form 8-A dated September 20, 1992, which is
incorporated by reference. You may request a copy of this registration
statement in the manner described under "WHERE YOU CAN FIND MORE INFORMATION."
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms and provisions of the Depositary
Shares (as defined below). The prospectus supplement will describe the
specific terms of the Depositary Shares offered under that prospectus
supplement and any general terms outlined in this section that will not apply
to those Depositary Shares.
The form of Deposit Agreement, including the form of Depositary Receipt, has
been filed as an exhibit to the registration statement.
This section summarizes certain terms and provisions of the Deposit Agreement,
the Depositary Shares and the Depositary Receipts. The summary is not
complete. You should read the forms of Deposit Agreement and Depositary
Receipt relating to a series of preferred stock for additional information
before you buy any Depositary Shares that represent preferred stock of such
series.
GENERAL
United HealthCare may offer fractional interests in preferred stock, rather
than full shares of preferred stock. In such an event, United HealthCare will
provide for the issuance by a depositary to the public of receipts for
depositary shares ("Depositary Shares"), each of which will represent a
fractional interest in a share of a particular series of preferred stock.
The shares of any series of preferred stock underlying the Depositary Shares
will be deposited under a separate deposit agreement ("Deposit Agreement")
between United HealthCare and a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50 million ("Depositary"). The applicable prospectus supplement will
set forth the name and address of the Depositary. Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share will have a fractional
interest in all the rights and preferences of the preferred stock underlying
such Depositary Share. Those rights include any dividend, voting, redemption,
conversion and liquidation rights.
The Depositary Shares will be evidenced by depositary receipts issued under
the Deposit Agreement ("Depositary Receipts"). If you purchase fractional
interests in shares of the related series of preferred stock, you will receive
Depositary Receipts as described in the applicable prospectus supplement.
While the final Depositary Receipts are being prepared, United HealthCare may
order the Depositary to issue temporary Depositary Receipts substantially
identical to the final Depositary Receipts although not in final form. The
holders of the temporary Depositary Receipts will be entitled to the same
rights as if they held the Depositary Receipts in final form. Holders of the
temporary Depositary Receipts can exchange them for the final Depositary
Receipts at United HealthCare's expense.
WITHDRAWAL OF PREFERRED STOCK
If you surrender Depositary Receipts at the principal office of the Depositary
(unless the related Depositary Shares have previously been called for
redemption), you are entitled to receive at such office the number of shares
of preferred stock and any money or other
35
<PAGE>
property represented by such Depositary Shares. United HealthCare will not
issue partial preferred stock. If you deliver Depositary Receipts evidencing a
number of Depositary Shares that represent more than a whole number of shares
of preferred stock, the Depositary will issue to you a new Depositary Receipt
evidencing such excess number of Depositary Shares at the same time that the
preferred stock is withdrawn. Holders of shares of preferred stock received in
exchange for Depositary Shares will no longer be entitled to deposit such
shares under the Deposit Agreement or to receive Depositary Shares in exchange
for such preferred stock.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received with respect to the preferred stock to the record holders of
Depositary Shares representing the preferred stock in proportion to the numbers
of Depositary Shares owned by the holders on the relevant record date. The
Depositary will distribute only the amount that can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent. The
balance not distributed will be added to and treated as part of the next sum
received by the Depositary for distribution to record holders of Depositary
Shares.
If there is a distribution other than in cash, the Depositary will distribute
property to the holders of Depositary Shares, unless the Depositary determines
that it is not feasible to make such distribution. If this occurs, the
Depositary may, with United HealthCare's approval, sell the property and
distribute the net proceeds from the sale to the holders of Depositary Shares.
The Deposit Agreement will also contain provisions relating to how any
subscription or similar rights offered by United HealthCare to holders of the
preferred stock will be made available to the holders of Depositary Shares.
CONVERSION AND EXCHANGE
Unless otherwise specified in the applicable prospectus supplement, the series
of preferred stock underlying the Depositary Shares will not be convertible or
exchangeable into any other class or series of capital stock of United
HealthCare.
REDEMPTION OF DEPOSITED PREFERRED STOCK
If the series of the preferred stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
redemption proceeds, in whole or in part, of such series of the preferred stock
held by the Depositary. The Depositary will mail notice of redemption 30 to 60
days prior to the date fixed for redemption to the record holders of the
Depositary Shares to be redeemed at their addresses appearing in the
Depositary's records. The redemption price per Depositary Share will bear the
same relationship to the redemption
price per share of preferred stock that the Depositary Share bears to the
underlying preferred stock. Whenever United HealthCare redeems preferred stock
held by the Depositary, the Depositary will redeem, as of the same redemption
date, the number of Depositary Shares representing the preferred stock
redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or pro rata as
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares called for
redemption will no longer be outstanding. When the Depositary Shares are no
longer outstanding, all rights of the holders will cease, except the right to
receive money or other property that the holders of the Depositary Shares were
entitled to receive upon such redemption. Such
36
<PAGE>
payments will be made when holders surrender their Depositary Receipts to the
Depositary.
VOTING OF DEPOSITED 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 information about the
meeting contained in the notice 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 how the
preferred stock underlying the holder's Depositary Shares should be voted.
The Depositary will try, if practical, to vote the number of preferred stock
underlying the Depositary Shares according to the instructions received. United
HealthCare will agree to take all action requested by and deemed necessary by
the Depositary in order to enable the Depositary to vote the preferred stock in
that manner. The Depositary will not vote any preferred stock for which it does
not receive specific instructions from the holders of the Depositary Shares
relating to such preferred stock.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes as
if they were owners of the preferred stock represented by the Depositary
Shares. Accordingly, for U.S. federal income tax purposes they will have the
income and deductions to which they would be entitled if they were holders of
the preferred stock. In addition:
. no gain or loss will be recognized for federal income tax purposes upon the
withdrawal of preferred stock in exchange for Depositary Shares as provided
in the Deposit Agreement;
. the tax basis of the preferred stock to an exchanging owner of Depositary
Shares will, upon the exchange, be the same as the aggregate tax basis of the
Depositary Shares exchanged for such preferred stock; and
. the holding period for the preferred stock, in the hands of an exchanging
owner of Depositary Shares who held the Depositary Shares as a capital asset
at the time of the exchange, will include the period that the owner held such
Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended by agreement between United
HealthCare and the Depositary at any time. However, any amendment that
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless approved by the record holders
of at least a majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by United HealthCare or the Depositary only if:
. all outstanding Depositary Shares relating to the Deposit Agreement have been
redeemed; or
. there has been a final distribution on the preferred stock of the relevant
series in connection with the liquidation, dissolution or winding up of
United HealthCare and the distribution has been distributed to the holders of
the related Depositary Shares.
CHARGES OF DEPOSITARY
United HealthCare will pay all transfer and other taxes and governmental
charges arising
solely from the existence of the depositary arrangements. United HealthCare
will pay associated charges of the Depositary for the
37
<PAGE>
initial deposit of the preferred stock and any redemption of the preferred
stock. Holders of Depositary Shares will pay transfer and other taxes and
governmental charges and any other charges that are stated to be their
responsibility in the Deposit Agreement.
MISCELLANEOUS
United HealthCare will forward to the holders of Depositary Shares all reports
and communications that it must furnish to the holders of the preferred stock.
Neither the Depositary nor United HealthCare will be liable if the Depositary
is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. United HealthCare's
obligations and the Depositary's obligations under the Deposit Agreement will
be limited to performance in good faith of duties set forth in the Deposit
Agreement. Neither the Depositary nor United HealthCare will be obligated to
prosecute or defend any legal proceeding connected with any Depositary Shares
or preferred stock unless satisfactory indemnity is furnished to United
HealthCare and/or the Depositary. United HealthCare and the Depositary may rely
upon written advice of counsel or accountants, or information provided by
persons presenting preferred stock for deposit, holders of Depositary Shares 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 notice to United
HealthCare. United HealthCare may also remove the Depositary at any time.
Resignations or removals will take effect upon the appointment of a successor
depositary and its acceptance of the appointment. The 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
million.
DESCRIPTION OF SECURITIES WARRANTS
This section describes the general terms and provisions of the Securities
Warrants (as defined below). The prospectus supplement will describe the
specific terms of the Securities Warrants offered through that prospectus
supplement and any general terms outlined in this section that will not apply
to those Securities Warrants.
United HealthCare may issue warrants for the purchase of Senior Debt
Securities, Subordinated Debt Securities, preferred stock, Depositary Shares or
common stock ("Securities Warrants"). Securities Warrants
may be issued alone or together with Senior Debt Securities, Subordinated Debt
Securities, preferred stock, Depositary Shares or common stock offered by any
prospectus supplement and may be attached to or separate from those securities.
Each series of Securities Warrants will be issued under Securities Warrant
Agreements between United HealthCare and a bank or trust company, as warrant
agent ("Securities Warrant Agent"), which will be described in the applicable
prospectus supplement. The Securities Warrant Agent will act solely as an agent
of United HealthCare in connection with the Securities Warrants and will not
act as an agent or trustee for any holders or beneficial holders of Securities
Warrants.
This section summarizes certain terms and provisions of the Securities Warrant
Agreements and Securities Warrants. The
38
<PAGE>
summary is not complete. You should read the applicable forms of Securities
Warrant Agreement and Securities Warrant Certificate (as defined below) for
additional information before you buy any Securities Warrants.
The forms of Securities Warrant Agreements and the certificates representing
the Securities Warrants ("Securities Warrant Certificates") have been filed as
exhibits to the registration statement.
GENERAL
If United HealthCare offers Securities Warrants, the applicable prospectus
supplement will describe their terms. If Securities Warrants for the purchase
of Senior Debt Securities or Subordinated Debt Securities are offered, the
applicable prospectus supplement will describe the terms of such Securities
Warrants, including the following if applicable:
. the offering price;
. the currencies in which such Securities Warrants are being offered;
. the designation, aggregate principal amount, currencies, denominations and
terms of the series of the Senior Debt Securities or Subordinated Debt
Securities that can be purchased if a holder exercises such Securities
Warrants;
. the designation and terms of any series of Senior Debt Securities,
Subordinated Debt Securities, preferred stock or Depositary Shares with
which such Securities Warrants are being offered and the number of
Securities Warrants offered with each Senior Debt Security, Subordinated
Debt Security, share of preferred stock, Depositary Share or share of common
stock;
. the date on and after which the holder of such Securities Warrants can
transfer them separately from the related common stock or series of Senior
Debt Securities, Subordinated Debt Securities, preferred stock or Depositary
Shares;
. the principal amount of the series of Senior Debt Securities or Subordinated
Debt Securities that can be purchased if a holder exercises such Securities
Warrant and the price at which and currencies in which such principal amount
may be purchased upon exercise;
. the date on which the right to exercise such Securities Warrants begins and
the date on which such right expires;
. United States federal income tax consequences; and
. any other terms of such Securities Warrants.
Securities Warrants for the purchase of Senior Debt Securities and
Subordinated Debt Securities will be in registered form only.
If Securities Warrants for the purchase of preferred stock, Depositary Shares
or common stock are offered, the applicable prospectus supplement will
describe the terms of such
Securities Warrants, including the following where applicable:
. the offering price;
. the total number of shares that can be purchased if a holder of such
Securities Warrants exercises them and, in the case of Securities Warrants
for preferred stock or Depositary Shares, the designation, total number and
terms of the series of preferred stock that can be purchased upon exercise
or that are underlying the Depositary Shares that can be purchased upon
exercise;
. the designation and terms of the series of Senior Debt Securities,
Subordinated Debt Securities, preferred stock or Depositary Shares with
which such Securities Warrants are being offered and the number of
Securities Warrants being offered with each Senior Debt Security,
Subordinated Debt
39
<PAGE>
Security, share of preferred stock, Depositary Share or share of common stock;
. the date on and after which the holder of such Securities Warrants can
transfer them separately from the related common stock or series of Senior
Debt Securities, Subordinated Debt Securities, preferred stock or Depositary
Shares;
. the number of shares of preferred stock, Depositary Shares or shares of
common stock that can be purchased if a holder exercises such Securities
Warrant and the price at which such preferred stock, Depositary Shares or
common stock may be purchased upon each exercise;
. the date on which the right to exercise such Securities Warrants begins and
the date on which such right expires;
. United States federal income tax consequences; and
. any other terms of such Securities Warrants.
Securities Warrants for the purchase of preferred stock, Depositary Shares or
common stock will be in registered form only.
A holder of Securities Warrant Certificates may (1) exchange them for new
certificates of different denominations, (2) present them for registration of
transfer and (3) exercise them at the corporate trust office of the Securities
Warrant Agent or any other office indicated in the applicable prospectus
supplement. Until any Securities Warrants to purchase Senior Debt Securities or
Subordinated Debt Securities are exercised, the holder of such Securities
Warrants will not have any of the rights of Holders of the Senior Debt
Securities or Subordinated Debt Securities that can be purchased upon exercise,
including any right to receive payments of principal, premium or interest on
the underlying Senior Debt Securities or Subordinated Debt Securities or to
enforce covenants in the applicable indenture. Until any Securities Warrants to
purchase preferred stock, Depositary Shares or common stock are exercised,
holders of such Securities Warrants will not have any rights of holders of the
underlying preferred stock, Depositary Shares or common stock, including any
right to receive dividends or to exercise any voting rights.
EXERCISE OF SECURITIES WARRANTS
Each holder of a Securities Warrant is entitled to purchase the principal
amount of Senior Debt Securities or Subordinated Debt Securities or number of
shares of preferred stock, Depositary Shares or shares of common stock, as the
case may be, at the exercise price described in the applicable prospectus
supplement. After the close of business on the day when the right to exercise
terminates (or a later date if United HealthCare extends the time for
exercise), unexercised Securities Warrants will become void.
A holder of Securities Warrants may exercise them by following the general
procedure outlined below:
. delivering to the Securities Warrant Agent the payment required by the
applicable prospectus supplement to purchase the underlying security;
. properly completing and signing the reverse side of the Securities Warrant
Certificate representing the Securities Warrants; and
. delivering the Securities Warrant Certificate representing the Securities
Warrants to the Securities Warrant Agent within five business days of the
Securities Warrant Agent receiving payment of the exercise price.
If you comply with the procedures described above, your Securities Warrants
will be considered to have been exercised when the Securities Warrant Agent
receives payment of
40
<PAGE>
the exercise price. After you have completed those procedures, United
HealthCare will, as soon as practicable, issue and deliver to you the Senior
Debt Securities, Subordinated Debt Securities, preferred stock, Depositary
Shares or common stock that you purchased upon exercise. If you exercise fewer
than all of the Securities Warrants represented by a Securities Warrant
Certificate, a new Securities Warrant Certificate will be issued to you for the
unexercised amount of Securities Warrants. Holders of Securities Warrants will
be required to pay any tax or governmental charge that may be imposed in
connection with transferring the underlying securities in connection with the
exercise of the Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
United HealthCare may amend or supplement a Securities Warrant Agreement
without the consent of the holders of the applicable Securities Warrants if the
changes are not inconsistent with the provisions of the Securities Warrants and
do not materially adversely affect the interests of the holders of the
Securities Warrants. United HealthCare and the Securities Warrant Agent may
also modify or amend a Securities Warrant Agreement and the terms of the
Securities Warrants if a majority of the then outstanding unexercised
Securities Warrants affected by the modification or amendment consent. However,
no modification or amendment that accelerates the expiration date, increases
the exercise price, reduces the majority consent requirement for any such
modification or amendment, or otherwise materially adversely affects the rights
of the holders of the Securities Warrants may be made without the consent of
each holder affected by the modification or amendment.
COMMON STOCK WARRANT ADJUSTMENTS
Unless the applicable prospectus supplement states otherwise, the exercise
price of, and the number of shares of common stock covered by, a common stock
Warrant will be adjusted in the manner set forth in the applicable prospectus
supplement if certain events occur, including:
. if United HealthCare issues capital stock as a dividend or distribution on
the common stock;
. if United HealthCare subdivides, reclassifies or combines the common stock;
. if United HealthCare issues rights or warrants to all holders of common stock
entitling them (for a period expiring 45 days after the date fixed for
determining the shareholders entitled to receive such rights or warrants) to
purchase common stock at less than the current market price (as defined in
the Warrant Agreement for such series of common stock Warrants); or
. if United HealthCare distributes to all holders of common stock evidences of
its indebtedness or its assets (excluding certain cash dividends and
distributions described below) or rights or warrants (excluding those
referred to above).
Except as stated above, the exercise price and number of shares of common stock
covered by a common stock Warrant will not be adjusted if United HealthCare
issues common stock cr any securities convertible into or exchangeable for
common stock, or securities carrying the right to purchase common stock or
securities convertible into or exchangeable for common stock.
Holders of common stock Warrants may have additional rights under the following
circumstances:
. a reclassification or change of the common stock;
. a consolidation or merger involving United HealthCare; or
41
<PAGE>
. a sale or conveyance to another corporation of all or substantially all of
the property and assets of United HealthCare.
If one of the above transactions occurs and holders of United HealthCare's
common stock are entitled to receive stock, securities, other property or
assets (including cash) with respect to or in exchange for such common stock,
the holders of the common stock Warrants then outstanding will be entitled to
receive upon exercise of their common stock Warrants the kind and amount of
shares of stock and other securities or property that they would have received
upon the reclassification, change, consolidation, merger, sale or conveyance if
they had exercised their common stock Warrants immediately before the
transaction.
DESCRIPTION OF THE
PREFERRED SECURITIES
GENERAL
This section describes the general terms and provisions of the preferred
securities that may be offered by this prospectus. The prospectus supplement
will describe the specific terms of the series of the preferred securities
offered under that prospectus supplement and any general terms outlined in this
section that will not apply to those preferred securities.
The trust agreement of each trust authorizes the Administrative Trustees to
issue on behalf of such trust one series of preferred securities and one series
of common securities containing the terms described in a prospectus supplement.
The proceeds from the sale of the preferred securities and common securities
will be used by each trust to purchase a series of Junior Subordinated Debt
Securities from United HealthCare. The Junior Subordinated Debt Securities will
be held in trust by the Property Trustee for your benefit and the benefit of
the holder of the common securities.
Under the Guarantee, United HealthCare will agree to make payments of
distributions and payments on redemption or liquidation with respect to the
preferred securities, to the extent that the related trust holds funds
available therefor and has not made such payments. See "DESCRIPTION OF THE
GUARANTEE."
The assets of each trust available for distribution to you will be limited to
payments received from United HealthCare under the Corresponding Junior
Subordinated Debt Securities. If United HealthCare fails to make a payment on
such Corresponding Junior Subordinated Debt Securities, the Property Trustee
will not have sufficient funds to make related payments, including
distributions, on the preferred securities.
Each Guarantee, when taken together with United HealthCare's obligations under
the Corresponding Junior Subordinated Debt Securities and the Junior
Subordinated Indenture, the applicable trust agreement and the Expense
Agreement (as defined below), will provide a full and unconditional guarantee
of amounts due on the preferred securities issued by each trust.
The trust agreement will be qualified as an indenture under the Trust Indenture
Act.
The preferred securities will have the terms described in the applicable trust
agreement or made part of such trust agreement by the Trust Indenture Act or
the Delaware Business Trust Act. The terms of the preferred securities will
mirror the terms of the Junior Subordinated Debt Securities held by each trust.
Each trust will redeem an amount of preferred securities equal to the amount of
any Corresponding Junior Subordinated Debt Securities redeemed.
Specific terms relating to the preferred securities will be described in the
applicable prospectus supplement, including:
42
<PAGE>
. the name of the preferred securities;
. the dollar amount and number of preferred securities issued;
. the annual distribution rate(s) (or method of determining such rate(s)), the
payment date(s) and the record dates used to determine the holders who are to
receive distributions;
. the date from which distributions shall be cumulative;
. the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions for which the preferred securities
shall be purchased or redeemed, in whole or in part;
. the terms and conditions, if any, upon which the Junior Subordinated Debt
Securities may be distributed to you by the trusts;
. any securities exchange on which the preferred securities may be listed;
. whether the preferred securities are to be issued in book-entry form and
represented by one or more global certificates, and if so, the depositary for
such global certificates and the specific terms of the
depositary arrangements; and
. any other relevant rights, preferences, privileges, limitations or
restrictions of the preferred securities.
The prospectus supplement will also describe certain United States federal
income tax considerations applicable to any offering of preferred securities.
REDEMPTION OR EXCHANGE
MANDATORY REDEMPTION. If any Corresponding Junior Subordinated Debt Securities
are repaid or redeemed in whole or in part, whether at maturity or upon earlier
redemption, the Property Trustee will use the proceeds from such repayment or
redemption to redeem a Like Amount (as defined on page 44) of the preferred
securities and common securities. The Property Trustee will give you at least
30 days' notice, but not more than 60 days' notice, before the Redemption Date
(as defined below). The preferred securities and (unless there is a default
under the Junior Subordinated Debt Securities) the common securities will be
redeemed at a redemption price equal to the aggregate Liquidation Amount (as
defined on page 44) of such preferred securities and common securities plus
accumulated but unpaid distributions thereon to the date of redemption
("Redemption Date") and the related amount of the premium, if any, paid by
United HealthCare ("Redemption Price") upon the concurrent redemption of such
Corresponding Junior Subordinated Debt Securities. See "DESCRIPTION OF THE
JUNIOR SUBORDINATED DEBT SECURITIES--Redemption."
If less than all of any series of Corresponding Junior Subordinated Debt
Securities are to be repaid or redeemed on a Redemption Date, then the proceeds
from such repayment or redemption shall be allocated, pro rata, to the
redemption of the related preferred securities and the common securities.
United HealthCare may redeem any series of Corresponding Junior Subordinated
Debt Securities:
. on or after such date as may be specified in the applicable prospectus
supplement, in whole at any time or in part from time to time;
. at any time, in whole (but not in part), upon the occurrence of a Tax Event
(as defined on page 22) or an Investment Company Event (as defined on page
23); or
. as may be otherwise specified in the applicable prospectus supplement.
43
<PAGE>
DISTRIBUTION OF CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES. United
HealthCare may at any time terminate any trust and, after satisfaction of the
liabilities of creditors of such trust as provided by applicable law, cause
such Corresponding Junior Subordinated Debt Securities relating to the
preferred securities and common securities issued by such trust to be
distributed to you and the holders of the common securities in liquidation of
the trust.
TAX EVENT OR INVESTMENT COMPANY EVENT REDEMPTION. If a Tax Event or Investment
Company Event relating to a series of preferred securities and common
securities shall occur and be continuing, United HealthCare may redeem the
Corresponding Junior Subordinated Debt Securities in whole (but not in part).
This will cause a mandatory redemption of all of the related preferred
securities and common securities at the Redemption Price within 90 days
following the occurrence of such Tax Event or Investment Company Event.
If a Tax Event or Investment Company Event relating to a series of preferred
securities and Common Securities occurs and is continuing and United HealthCare
elects not to redeem the Corresponding Junior Subordinated Debt Securities or
to terminate the related trust and cause the Corresponding Junior Subordinated
Debt Securities to be distributed to holders of such preferred securities and
common securities as described above, such preferred securities and common
securities will remain outstanding and Additional Sums (as defined below) may
be payable on the Corresponding Junior Subordinated Debt Securities.
"Additional Sums" means the additional amounts required to be paid so that the
amount of distributions due and payable by a trust on outstanding preferred
securities and common securities shall not be reduced because of any additional
taxes, duties and other governmental charges to which such trust is subject
because of a Tax Event.
"Like Amount" means:
. with respect to a redemption of any series of preferred securities and common
securities, preferred securities and common securities of such series having
a Liquidation Amount (as defined below) equal to that portion of the
principal amount of Corresponding Junior Subordinated Debt Securities to be
contemporaneously redeemed. The Like Amount will be allocated to the common
securities and to the preferred securities based upon their relative
Liquidation Amounts. The proceeds will be used to pay the Redemption Price of
such preferred securities and common securities; and
. with respect to a distribution of Corresponding Junior Subordinated Debt
Securities to holders of any series of preferred securities and common
securities, Corresponding Junior Subordinated Debt Securities having a
principal amount equal to the Liquidation Amount of the related preferred
securities and common securities.
"Liquidation Amount" means, unless otherwise provided in the applicable
prospectus supplement, $25 per Preferred Security and common security.
Once the liquidation date is fixed for any distribution of Corresponding Junior
Subordinated Debt Securities for any series of preferred securities:
. such series of preferred securities will no longer be deemed to be
outstanding;
. The Depository Trust Company, New York, New York ("DTC"), or its nominee, as
the record holder of such series of preferred securities, will receive a
registered global certificate or certificates representing the
44
<PAGE>
Corresponding Junior Subordinated Debt Securities to be delivered upon such
distribution; and
. certificates representing such series of preferred securities not held by DTC
or its nominee will be deemed to represent the Corresponding Junior
Subordinated Debt Securities. Such certificates will bear accrued and unpaid
interest in an amount equal to the accrued and unpaid distributions on such
series of preferred securities until such certificates are presented to the
Administrative Trustees of the applicable trust or their agent for transfer
or reissuance.
The market prices for the preferred securities or the Corresponding Junior
Subordinated Debt Securities cannot be assured. Accordingly, the preferred
securities that you may purchase, or the Corresponding Junior Subordinated Debt
Securities that you may receive on dissolution and liquidation of a trust, may
trade at a discount to the price that you paid for the preferred securities
offered hereby.
REDEMPTION PROCEDURES
Preferred securities redeemed on a Redemption Date shall be:
. redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of the Corresponding Junior Subordinated Debt
Securities; and
. payable on each Redemption Date only to the extent that the related trust has
funds on hand available for the payment of such Redemption Price.
If notice of redemption is given, then, by 12:00 noon, New York City time, on
the Redemption Date, to the extent funds are available, the Property Trustee
will deposit irrevocably with DTC funds sufficient to pay the applicable
Redemption Price and will give DTC irrevocable instructions and authority to
pay the Redemption Price to you. See "BOOK-ENTRY ISSUANCE." If such preferred
securities are no longer in book-entry form, the Property Trustee, to the
extent funds are available, will irrevocably deposit with the Paying Agent for
such preferred securities funds sufficient to pay the applicable Redemption
Price and will give such Paying Agent irrevocable instructions and authority to
pay the Redemption Price to you upon surrender of your certificates evidencing
such preferred securities.
Distributions payable on or prior to the Redemption Date for any preferred
securities called for redemption shall be payable to the holders on the
relevant record dates for the related distribution dates.
If notice of redemption is given and funds deposited as required, all of your
rights will cease, except your right to receive the Redemption Price, and such
preferred securities will cease to be outstanding.
If a Redemption Date is not a business day, then payment of the Redemption
Price payable on such date will be made on the next succeeding day which is a
business day (and without any interest or other payment in respect of any such
delay). However, if such business day falls in the next calendar year, such
payment will be made on the immediately preceding business day.
If payment of the Redemption Price of the preferred securities called for
redemption is improperly withheld or refused and not paid either by the trust
or by United HealthCare pursuant to the Guarantee, then distributions on such
preferred securities will continue to accrue at the then applicable rate from
the Redemption Date to the date such Redemption Price is actually paid. In this
case the actual payment date will be the Redemption Date for purposes of
calculating the Redemption Price.
45
<PAGE>
Subject to applicable law (including, without limitation, federal securities
law), United HealthCare or its subsidiaries may at any time and from time to
time purchase outstanding preferred securities by tender offer, in the open
market or by private agreement.
Payment of the Redemption Price on the preferred securities and any
distribution of Corresponding Junior Subordinated Debt Securities to holders of
preferred securities shall be payable to the holders on the relevant record
date. The record date shall be one business day prior to the relevant
Redemption Date or liquidation date, as applicable. However, if the preferred
securities are not in book-entry form, the relevant record date for such
preferred securities shall be at least 15 days prior to the Redemption Date or
liquidation date.
If less than all of the preferred securities and common securities issued by a
trust are to be redeemed on a Redemption Date, then the aggregate Liquidation
Amount of such preferred securities and common securities to be redeemed shall
be allocated pro rata to the preferred securities and the common securities
based upon the relative Liquidation Amounts of such classes. The Property
Trustee will select the preferred securities to be redeemed on a pro rata basis
not more than 60 days prior to the Redemption Date, by a method deemed fair and
appropriate by it. The Property Trustee will promptly notify the registrar in
writing of the preferred securities selected for redemption and, in the case of
any preferred securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed.
You will receive notice of any redemption at least 30 days but not more than 60
days before the Redemption Date at your registered address. Unless United
HealthCare defaults in the payment of the Redemption Price on the Corresponding
Junior Subordinated Debt Securities, on and after the Redemption Date interest
will cease to accrue on such Junior Subordinated Debt Securities or portions
thereof (and distributions will cease to accrue on the related preferred
securities or portions thereof) called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of distributions on, and the Redemption Price of, each trust's
preferred securities and common securities, as applicable, shall be made pro
rata based on the liquidation amount of such preferred securities and common
securities. However, if an event of default under the Junior Subordinated
Indenture shall have occurred and is continuing, no payment may be made on any
of the trust's common securities, unless all unpaid amounts on each of the
trust's outstanding preferred securities shall have been made or provided for
in full.
If an event of default under the Junior Subordinated Indenture has occurred and
is continuing, United HealthCare as holder of such trust's common securities
will be deemed to have waived any right to act with respect to any such event
of default under the applicable trust agreement until the effect of all such
events of default with respect to such preferred securities have been cured,
waived or otherwise eliminated. Until any such events of default under the
applicable trust agreement with respect to the preferred securities have been
so cured, waived or otherwise eliminated, the Property Trustee will act solely
on your behalf and not on behalf of United HealthCare as holder of the trust's
common securities, and only you and the other holders of preferred securities
will have the right to direct the Property Trustee to act on your behalf.
46
<PAGE>
LIQUIDATION DISTRIBUTION UPON TERMINATION
Each trust agreement states that each trust shall be automatically terminated
upon the expiration of the term of such trust and shall also be terminated on
the first to occur of:
. the bankruptcy, dissolution or liquidation of United HealthCare;
. the distribution of a Like Amount of the Junior Subordinated Debt Securities
directly to the holders of the preferred securities and common securities.
For this distribution, United HealthCare must give at least 30 days written
notice to the Junior Subordinated Trustees;
. the redemption of all of the preferred securities and common securities of a
trust; and
. a court order for the dissolution of a trust is entered.
If dissolution of a trust occurs as described in the first, second and fourth
bullets above, the applicable Junior Subordinated Trustee shall liquidate such
trust as quickly as possible. After paying all amounts owed to creditors, the
Junior Subordinated Trustee will distribute to the holders of the preferred
securities and the common securities either:
. a Like Amount of Junior Subordinated Debt Securities; or
. if the distribution of the Junior Subordinated Debt Securities is determined
by the Property Trustee not to be practical, cash assets equal to the
aggregate Liquidation Amount per Preferred Security and common security
specified in an accompanying prospectus supplement, plus accumulated and
unpaid distributions thereon to the date of payment.
If a trust cannot pay the full amount due on its preferred securities and
common securities because insufficient assets are available for payment, then
the amounts payable by such trust on its preferred securities and common
securities shall be paid pro rata. However, if an event of default under the
Junior Subordinated Indenture has occurred and is continuing, the total amounts
due on the preferred securities shall be paid before any distribution on the
common securities.
EVENTS OF DEFAULT; NOTICE
The following are events of default under the trust agreements with respect to
any series of preferred securities issued:
. the occurrence of an event of default under the Junior Subordinated
Indenture;
. failure by the Property Trustee to pay any distribution when due and such
failure continues for 30 days;
. failure by the Property Trustee to pay any Redemption Price when due;
. failure to perform in any material respect, any other covenant or warranty by
the Junior Subordinated Trustees in a trust agreement for a period of 60 days
after the defaulting Junior Subordinated Trustee receives notice from holders
of at least 25% in aggregate principal amount of the outstanding preferred
securities; or
. certain events of bankruptcy or insolvency with respect to the Property
Trustee, and the failure by United HealthCare to appoint a successor Property
Trustee within 60 days of such bankruptcy or insolvency.
Within five business days after an event of default under the trust agreement
known to the Property Trustee, the Property Trustee will notify you and the
holders of the common securities, the Administrative Trustees and United
HealthCare, unless such event of default has been cured or waived.
United HealthCare and the Administrative Trustees must file annually with the
Property
47
<PAGE>
Trustee a certificate stating whether or not they are in compliance with all
the applicable conditions and covenants under the applicable trust agreement.
If the Property Trustee fails to enforce its rights under a trust agreement or
the Junior Subordinated Indenture to the fullest extent permitted by law, and
subject to the terms of such trust agreement and the Junior Subordinated
Indenture, you may sue United HealthCare, or seek other remedies, to enforce
the Property Trustee's rights under such trust agreement or the Junior
Subordinated Indenture with respect to Junior Subordinated Debt Securities
having a principal amount equal to the Liquidation Amount of your preferred
securities without first instituting a legal proceeding against the Property
Trustee or any other person.
If any action under the Junior Subordinated Indenture is entitled to be taken
by the holders of at least a specified percentage of the principal amount of
the Junior Subordinated Debt Securities, holders of the same percentage of the
Liquidation Amount of preferred securities may take such action if it is not
taken by the Property Trustee. However, if United HealthCare fails to pay
principal, premium or interest on the Junior Subordinated Debt Securities, you
may sue United HealthCare, or seek other remedies, to collect your pro rata
share of payments owed.
REMOVAL OF JUNIOR SUBORDINATED TRUSTEES
Unless an event of default under a trust agreement has occurred and is
continuing, any Junior Subordinated Trustee may be removed and replaced at any
time by United HealthCare. If an event of default under a trust agreement has
occurred and is continuing, the Property Trustee and the Delaware Trustee may
be removed or replaced by the holders of at least a majority in Liquidation
Amount of the outstanding preferred securities. Only United HealthCare has the
right to remove or replace the Administrative Trustees. No resignation or
removal of any of the Junior Subordinated Trustees and no appointment of a
successor Junior Subordinated Trustee shall be effective until the acceptance
of appointment by the successor Junior Subordinated Trustee in accordance with
the provisions of the applicable trust agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an event of default under a trust agreement has occurred and is
continuing, the holder of the common securities and the Administrative Trustees
shall have the power:
. to appoint one or more persons approved by the Property Trustee either to act
as co-trustee, jointly with the Property Trustee, of all or any part of the
trust property, or to act as separate Junior Subordinated Trustee of any
trust property, in either case with the powers as may be provided in the
instrument of appointment; and
. to vest in such person(s) any property, title, right or power deemed
necessary or desirable, subject to the provisions of the applicable trust
agreement.
If an event of default under a trust agreement has occurred and is continuing,
only the Property Trustee may appoint a co-trustee or separate property
trustee.
MERGER OR CONSOLIDATION OF JUNIOR SUBORDINATED TRUSTEES
If any of the Junior Subordinated Trustees merge, convert, or consolidate with
or into another entity or sells its trust operations to another entity, the new
entity shall be the successor of such Junior Subordinated Trustee under each
trust agreement, provided such
48
<PAGE>
corporation or other entity shall be qualified and eligible to be a Junior
Subordinated Trustee.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
A trust may not merge with or into, consolidate, amalgamate, or be replaced by,
or transfer or lease all or substantially all of its properties and assets to
any other entity ("Merger Event"), except as described below. A trust may, at
United HealthCare's request, with the consent of the Administrative Trustees
and without your consent, merge with or into, consolidate, amalgamate or be
replaced by another trust provided that:
. the successor entity either (1) expressly assumes all of the obligations of
the trust relating to the preferred securities or (2) substitutes for the
preferred securities other securities with terms substantially similar to
such preferred securities (successor securities) so long as the successor
securities rank the same as the preferred securities for distributions and
payments upon liquidation, redemption and otherwise;
. United HealthCare expressly appoints a trustee of such successor entity who
has the same powers and duties as the Property Trustee of such trust with
respect to the Junior Subordinated Debt Securities;
. the successor securities are listed or will be listed on the same national
securities exchange or other organization that the preferred securities are
listed on;
. the Merger Event does not cause the preferred securities or successor
securities to be downgraded by any national statistical rating organization;
. the Merger Event does not adversely affect the rights, preferences and
privileges of the holders of the preferred securities or successor securities
in any material way;
. such successor entity has a purpose substantially similar to that of such
trust;
. prior to the Merger Event, United HealthCare has received an opinion of
counsel stating that:
(i) such Merger Event does not adversely affect the rights of the holders of
the preferred securities or any successor securities in any material way;
and
(ii) following the Merger Event, neither such trust nor such successor entity
will be required to register as an investment company under the
Investment Company Act; and
. United HealthCare owns all of the common securities of such successor entity
and guarantees such successor entity's obligations under the successor
securities in the same manner provided by the related Guarantee.
The trusts and any successor entity must always be classified as grantor trusts
for federal tax purposes unless all of the holders of the preferred securities
approve otherwise.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
You have no voting rights except as discussed under "DESCRIPTION OF THE
PREFERRED SECURITIES--Mergers, Consolidations, Amalgamations or Replacements of
the trust" and "DESCRIPTION OF THE GUARANTEE--Amendments and Assignment," and
as otherwise required by law and the applicable trust agreement.
United HealthCare, the Property Trustee and the Administrative Trustees may
amend each trust agreement without your consent:
. to fix any ambiguity or inconsistency; or
. to modify, eliminate or add provisions to the applicable trust agreement as
shall be necessary to ensure that each trust shall at
49
<PAGE>
all times be classified as a grantor trust for federal income tax purposes.
United HealthCare and the Administrative Junior Subordinated Trustees may amend
each trust agreement for any other reason as long as the holders of at least a
majority in aggregate liquidation amount of the preferred securities agree, and
such Junior Subordinated Trustees receive an opinion of counsel which states
that the amendment will not affect the applicable trust status as a grantor
trust for income tax purposes, or its exemption from regulation as an
investment company under the Investment Company Act, except to:
. change the amount and/or timing or otherwise adversely affect the method of
payment of any distribution or Liquidation Amount on the preferred securities
or common securities;
. restrict your right or the right of the common security holder to institute
suit for enforcement of any distribution or Liquidation Amount on the
preferred securities or common securities;
The changes described above require the approval of each holder of the
preferred securities affected.
So long as Corresponding Junior Subordinated Debt Securities of a trust are
held by the Property Trustee of such trust, the Junior Subordinated Trustees
shall not:
. direct the time, method and place of conducting any proceeding for any remedy
available to the Junior Subordinated Trustee or executing any trust or power
conferred on the Junior Subordinated Trustee with respect to such
Corresponding Junior Subordinated Debt Securities;
. waive any past default under Section 513 of the Junior Subordinated
Indenture;
. cancel an acceleration of the principal of the Corresponding Junior
Subordinated Debt Securities; or
. agree to any change in the Junior Subordinated Indenture or such
Corresponding Junior Subordinated Debt Securities, where the Junior
Subordinated Trustees' approval is required, without obtaining the prior
approval of the holders of at least a majority in the aggregate liquidation
amount of all outstanding related preferred securities. However, if the
Junior Subordinated Indenture requires the consent of each holder of
Corresponding Junior Subordinated Debt Securities that is affected, then the
Property Trustee must get approval of all holders of preferred securities.
The Junior Subordinated Trustees cannot change anything previously approved by
you without getting you to approve the change. The Property Trustee shall
notify you of any notice of default relating to the Corresponding Junior
Subordinated Debt Securities.
In addition, prior to taking any of the foregoing actions, the Junior
Subordinated Trustees must obtain an opinion of counsel stating that the trust
will continue to be classified as a grantor trust for federal income tax
purposes.
As described in each trust agreement, the Property Trustee may hold a meeting
to have you vote on a change or have you approve the change by written consent.
If your vote is taken or a consent is obtained, any preferred securities that
are owned by United HealthCare, the Junior Subordinated Trustees or any
affiliate of any of them shall, for purposes of the vote or consent, be treated
as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
The preferred securities of a series may be issued in whole or in part in the
form of one or
50
<PAGE>
more global securities that will be deposited with, or on behalf of, a
depositary identified in the applicable prospectus supplement. The specific
terms of the depositary arrangements with respect to a series of preferred
securities will be described in the applicable prospectus supplement. See
"BOOK-ENTRY ISSUANCE."
PAYMENT AND PAYING AGENTS
Payments in respect of the preferred securities shall be made to a depositary,
which shall credit the relevant accounts at the depositary on the applicable
distribution dates or, if any trust's preferred securities are not held by a
depositary, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the register.
Unless otherwise specified in the applicable prospectus supplement, the Paying
Agent shall initially be the Property Trustee. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and United HealthCare. If the Property Trustee shall no longer
be the Paying Agent, the Administrative Trustees shall appoint a successor
(which shall be a bank or trust company acceptable to the Administrative
Trustees and United HealthCare) to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable prospectus supplement, the
Property Trustee will act as registrar and transfer agent for the preferred
securities.
Registration of transfers of preferred securities will be effected without
charge by or on behalf of each trust, but upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. No transfers of preferred securities called for redemption will be
registered.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee will perform only such duties as are specifically set
forth in each trust agreement. Upon an event of default under a trust
agreement, the Property Trustee must use the same degree of care and skill in
the exercise of its duties as a prudent person would exercise or use in the
conduct of his or her own affairs. The Property Trustee is under no obligation
to exercise any of the powers given it by the applicable trust agreement at
your request unless it is offered reasonable security or indemnity against the
costs, expenses and liabilities that it might incur.
If no event of default under a trust agreement has occurred and is continuing,
and the Property Trustee is required to decide between alternative courses of
action, construe ambiguous provisions in applicable trust agreement or is
unsure of the application of any provisions of the applicable trust agreement,
and the matter is not one on which you are entitled to vote, then the Property
Trustee shall:
. take such action as is directed by United HealthCare; and
. if not so directed, shall take such action as it deems advisable and in your
best interests, and in the best interests of the holders of the preferred
securities and common securities of the applicable trust and will have no
liability except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the affairs
of and to operate the trusts in such a way that:
51
<PAGE>
. no trust will be deemed to be an "investment company" required to be
registered under the Investment Company Act or to be taxed as a corporation
for federal income tax purposes;
. the Corresponding Junior Subordinated Debt Securities will be treated as
indebtedness of United HealthCare for federal income tax purposes.
In this connection, United HealthCare and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law or the
certificate of trust of each trust or each trust agreement, that United
HealthCare and the Administrative Trustees determine in their discretion to be
necessary or desirable for such purposes.
You have no preemptive or similar rights. A trust may not borrow money, issue
debt or mortgages, or pledge any of its assets.
GOVERNING LAW
Each trust agreement will be governed by and construed in accordance with the
laws of the State of Delaware.
DESCRIPTION OF THE GUARANTEE
GENERAL
United HealthCare will execute a Guarantee, for your benefit at the same time
that a trust issues the preferred securities. The Guarantee will be qualified
as an indenture under the Trust Indenture Act. The Guarantee Trustee will hold
the Guarantee for your benefit.
United HealthCare will irrevocably agree to pay to you in full the Guarantee
Payments (as defined below) as and when due, regardless of any defense, right
of set-off or counterclaim which the trust may have or assert other than the
defense of payment. The following payments, to the extent not paid by a trust
("Guarantee Payments"), will be subject to the Guarantee:
. any accumulated and unpaid distributions required to be paid on such
preferred securities, to the extent that such trust has funds available to
make the payment;
. the redemption price and all accrued and unpaid distributions to the date of
redemption with respect to preferred securities called for redemption, to the
extent that such trust has funds available to make the payment; or
. upon a voluntary or involuntary dissolution, winding up or liquidation of
such trust (other than in connection with a distribution of Corresponding
Junior Subordinated Debt Securities to you or the redemption of all such
preferred securities), the lesser of:
(a) the aggregate of the Liquidation Amount specified in the prospectus
supplement for each Preferred Security plus all accrued and unpaid
distributions on the preferred securities to the date of payment; and
(b) the amount of assets of such trust remaining available for distribution
to you.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of the
related trust's obligations under the preferred securities, but will apply only
to the extent that such related trust has funds sufficient to make such
payments, and is not a guarantee of collection.
No single document executed by United HealthCare related to the issuance of the
preferred securities will provide for its full, irrevocable and unconditional
guarantee of the preferred securities. It is only the combined operation of the
applicable Guarantee, the applicable trust agreement, the Junior Subordinated
Indenture and the Expense
52
<PAGE>
Agreement that has the effect of providing a full, irrevocable and
unconditional guarantee of the trust's obligations under its preferred
securities.
STATUS OF GUARANTEES
Each Guarantee will constitute an unsecured obligation of United HealthCare and
will rank:
. equally with the most senior preferred stock issued by United HealthCare
after the date of this prospectus and with any guarantee entered into by
United HealthCare in respect of any preferred stock of any affiliate of
United HealthCare;
. subordinate and junior in right of payment to all other liabilities of United
HealthCare; and
. senior to the common stock.
Each Guarantee will rank equally with all Guarantees issued by United
HealthCare. The Guarantee will constitute a guarantee of payment and not of
collection (in other words you may sue United HealthCare, or seek other
remedies, to enforce your rights under the Guarantee without first suing any
other person or entity). Each Guarantee will be held for your benefit. Each
Guarantee will not be discharged except by payment of the Guarantee Payments in
full to the extent not previously paid by the trust or upon distribution to you
of the corresponding series of Junior Subordinated Debt Securities.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect your rights in
any material respect (in which case your consent will not be required), the
Guarantee may only be amended with the prior approval of the holders of at
least a majority in aggregate Liquidation Amount of such outstanding preferred
securities. A description of the manner in which approval may be obtained is
described under "DESCRIPTION OF THE PREFERRED SECURITIES--Voting Rights;
Amendment of Each trust agreement." All guarantees and agreements contained in
each Guarantee will be binding on United HealthCare's successors, assigns,
receivers, trustees and representatives and shall inure to the benefit of the
holders of the related preferred securities then outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee occurs if United HealthCare fails to
make any of its required payments or perform its obligations under the
Guarantee.
The holders of at least a majority in aggregate Liquidation Amount of the
related preferred securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee relating to the Guarantee or to direct the exercise of any trust or
power given to the Guarantee Trustee under such Guarantee.
You may institute a legal proceeding directly against United HealthCare to
enforce your rights under such Guarantee without first instituting a legal
proceeding against the trust, the Guarantee Trustee or any other person or
entity.
United HealthCare, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not United HealthCare is in
compliance with all the conditions and covenants applicable to it under the
Guarantee Agreement.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of an
event of default by United HealthCare in the performance of any Guarantee, will
only
53
<PAGE>
perform the duties that are specifically described in the Guarantee. After an
event of default with respect to any Guarantee, the Guarantee Trustee will
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision, the
Guarantee Trustee is under no obligation to exercise any of its powers as
described in the Guarantee at your request unless it is offered reasonable
indemnity against the costs, expenses and liabilities that it might incur.
TERMINATION OF PREFERRED SECURITIES GUARANTEES
Each Guarantee will terminate once the related preferred securities are paid in
full or upon distribution of the corresponding series of Junior Subordinated
Debt Securities to you. Each Guarantee will continue to be effective or will be
reinstated if at any time you are required to restore payment of any sums paid
under the preferred securities or such Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws of
the State of New York.
THE EXPENSE AGREEMENT
Pursuant to an Expense Agreement entered into by United HealthCare under each
trust agreement (the "Expense Agreement"), United HealthCare will irrevocably
and unconditionally guarantee, to each person or entity to whom the applicable
trust becomes indebted or liable, the full payment of any costs, expenses or
liabilities of such trust, other than such trust obligations to you pursuant to
the terms of the preferred securities or such other similar interests.
RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE CORRESPONDING JUNIOR
SUBORDINATED DEBT SECURITIES AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of distributions and other amounts due on the preferred securities (to
the extent the trust has funds available for the payments) will be irrevocably
guaranteed by United HealthCare to the extent described under "DESCRIPTION OF
THE GUARANTEE." No single document executed by United HealthCare in connection
with the issuance of the preferred securities will provide for its full,
irrevocable and unconditional guarantee of the preferred securities. It is only
the combined operation of United HealthCare's obligations under the related
Guarantee, the related trust agreement, the corresponding series of Junior
Subordinated Debt Securities, the Junior Subordinated Indenture and the Expense
Agreement that has the effect of providing a full, irrevocable and
unconditional guarantee of the trust's obligations under the related series of
preferred securities.
If United HealthCare does not make payments on any series of Corresponding
Junior Subordinated Debt Securities, the related trust will not pay
distributions or other amounts on the related preferred securities. The
Guarantee does not cover payments of distributions when the related trust does
not have sufficient funds to pay such distributions. In such event, your remedy
is to sue United HealthCare, or seek other remedies, to enforce your rights
under the Guarantee without first instituting a legal proceeding against the
Guarantee Trustee.
SUFFICIENCY OF PAYMENTS
As long as United HealthCare makes payments of interest and other payments when
due on
54
<PAGE>
each series of Corresponding Junior Subordinated Debt Securities, such payments
will be sufficient to cover the payment of distributions and other payments due
on the related preferred securities, primarily because:
. the aggregate principal amount of each series of Corresponding Junior
Subordinated Debt Securities will be equal to the sum of the aggregate
liquidation amount of the related preferred securities and common securities;
. the interest rate and interest and other payment dates on each series of
Corresponding Junior Subordinated Debt Securities will match the distribution
rate and distribution and other payment dates for the related preferred
securities;
. United HealthCare shall pay for any and all costs, expenses and liabilities
of such trust except such trust's obligations to holders of its preferred
securities under such preferred securities; and
. each trust agreement provides that the trust will not engage in any activity
that is not consistent with the limited purposes of such trust.
Notwithstanding anything to the contrary in the Junior Subordinated Indenture,
United HealthCare has the right to set-off any payment it is otherwise required
to make thereunder with and to the extent United HealthCare has theretofore
made, or is concurrently on the date of such payment making, a payment under
the related Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
You may institute a legal proceeding directly against United HealthCare to
enforce your rights under the related Guarantee without first instituting a
legal proceeding against the Guarantee Trustee, the related trust or any other
person or entity.
A default or event of default under any Senior and Subordinated Debt of United
HealthCare would not constitute a default or event of default under the trust
agreements. However, in the event of payment defaults under, or acceleration
of, Senior and Subordinated Debt of United HealthCare, the subordination
provisions of the Junior Subordinated Indenture provide that no payments may be
made in respect of the Corresponding Junior Subordinated Debt Securities until
such Senior and Subordinated Debt has been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on any
series of Corresponding Junior Subordinated Debt Securities would constitute an
event of default under the trust agreements.
LIMITED PURPOSE OF ISSUERS
Each trust's preferred securities evidence a beneficial interest in such trust,
and each trust exists for the sole purpose of issuing its preferred securities
and common securities and investing the proceeds thereof in Corresponding
Junior Subordinated Debt Securities. A principal difference between the rights
of a holder of a Preferred Security and a holder of a Corresponding Junior
Subordinated Debt Security is that a holder of a Corresponding Junior
Subordinated Debt Security is entitled to receive from United HealthCare the
principal amount of and interest accrued on Corresponding Junior Subordinated
Debt Securities held, while a holder of preferred securities is entitled to
receive distributions from such trust (or from United HealthCare under the
applicable Guarantee) if and to the extent such trust has funds available for
the payment of such distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination winding up or liquidation of any
trust
55
<PAGE>
involving a liquidation of the Corresponding Junior Subordinated Debt
Securities held by such trust, you will be entitled to receive, out of assets
held by such trust, the Liquidation Distribution in cash. See "DESCRIPTION OF
THE PREFERRED SECURITIES--Liquidation Distribution Upon Termination." Upon any
voluntary or involuntary liquidation or bankruptcy of United HealthCare, the
Property Trustee, as holder of the Corresponding Junior Subordinated Debt
Securities, would be a subordinated creditor of United HealthCare,
subordinated in right of payment to all Senior and Subordinated Debt, but
entitled to receive payment in full of principal, premium, if any, and
interest, before any of United HealthCare's common shareholders receive
payments or distributions.
Since United HealthCare is the guarantor under each Guarantee and has agreed
to pay for all costs, expenses and liabilities of each trust (other than the
trust's obligations to you), your position and the position of a holder of
such Corresponding Junior Subordinated Debt Securities relative to other
creditors and to shareholders of United HealthCare in the event of liquidation
or bankruptcy of United HealthCare are expected to be substantially the same.
BOOK-ENTRY ISSUANCE
DTC may act as securities depositary for all of the preferred securities and
the Debt Securities, unless otherwise referred to in the prospectus supplement
relating to an offering of preferred securities or Debt Securities. The
preferred securities and the Debt Securities will be issued only as fully-
registered securities registered in the name of Cede & Co. (DTC's nominee).
One or more fully-registered global certificates may be issued for the
preferred securities of each trust and the Debt Securities, representing in
the aggregate the total number of such trust's preferred securities or
aggregate principal balance of Debt Securities, respectively, and will be
deposited with DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants deposit with DTC. DTC also facilitates
the settlement among participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in participants' accounts, thereby eliminating the need for
physical movement of securities certificates. "Direct Participants" include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain custodial
relationships with Direct Participants, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Participants
are on file with the SEC.
Purchases of preferred securities or Debt Securities within the DTC system
must be made by or through Direct Participants, which will receive a credit
for the preferred securities or Debt Securities on DTC's records. The
ownership interest of each actual purchaser of each Preferred Security and
each Debt Security ("Beneficial Owner") is in turn to be recorded
56
<PAGE>
on the Direct and Indirect Participants' records. Beneficial Owners will not
receive written confirmation from DTC of their purchases, but Beneficial Owners
are expected to receive written confirmations providing details of the
transactions, as well as periodic statements of their holdings, from the Direct
or Indirect Participants through which the Beneficial Owners purchased
preferred securities or Debt Securities. Transfers of ownership interests in
the preferred securities or Debt Securities are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in preferred securities or Debt Securities, except in the event that
use of the book-entry system for the preferred securities of such trust or Debt
Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the preferred
securities or Debt Securities; DTC's records reflect only the identity of the
Direct Participants to whose accounts such preferred securities or Debt
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners and the voting rights of Direct
Participants, Indirect Participants and Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of the
preferred securities or Debt Securities. If less than all of the preferred
securities of a trust or the Debt Securities are being redeemed, DTC's current
practice is to determine by lot the amount of the interest of each Direct
Participant to be redeemed.
Although voting with respect to the preferred securities or the Debt Securities
is limited to the holders of record of the preferred securities or Debt
Securities, in those instances in which a vote is required, neither DTC nor
Cede & Co. will itself consent or vote with respect to preferred securities or
Debt Securities. Under its usual procedures, DTC would mail an omnibus proxy
(the "Omnibus Proxy") to the relevant trustee as soon as possible after the
record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights
to those Direct Participants to whose accounts such preferred securities or
Debt Securities are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
Distribution payments on the preferred securities or the Debt Securities will
be made by the relevant Trustee to DTC. DTC's practice is to credit Direct
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payments on such payment date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices and will be the responsibility of such Participant and not
of DTC, the relevant Trustee, the trust thereof or United HealthCare, subject
to any statutory or regulatory requirements as may be in effect from time to
time. Payment of distributions to DTC is the responsibility of the relevant
Trustee, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursements of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
57
<PAGE>
DTC may discontinue providing its services as securities depositary with
respect to any of the preferred securities or the Debt Securities at any time
by giving reasonable notice to the relevant Trustee and United HealthCare. In
the event that a successor securities depositary is not obtained, definitive
Preferred Security or Debt Security certificates representing such preferred
securities or Debt Securities are required to be printed and delivered. United
HealthCare, at its option, may decide to discontinue use of the system of book-
entry transfers through DTC (or a successor depositary). After an event of
default, the holders of a majority in liquidation preference of preferred
securities or aggregate principal amount of Debt Securities under an indenture
may determine to discontinue the system of book-entry transfers through DTC. In
any such event, definitive certificates for such preferred securities or Debt
Securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that the trusts and United HealthCare believe to be
accurate, but the trusts and United HealthCare assume no responsibility for the
accuracy thereof. Neither the trusts nor United HealthCare has any
responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
PLAN OF DISTRIBUTION
United HealthCare may sell the securities (a) through underwriters or dealers,
(b) directly to one or more purchasers, or (c) through agents. The prospectus
supplement will include the names of underwriters, dealers or agents retained.
The prospectus supplement also will include the purchase price of the
securities, United HealthCare's proceeds from the sale, any underwriting
discounts or commissions and other items constituting underwriters'
compensation, and any securities exchanges on which the securities may be
listed.
The underwriters will acquire the securities for their own account. They may
resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the
securities will be subject to certain conditions. The underwriters will be
obligated to purchase all the securities offered if any of the securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
Underwriters, dealers, and agents that participate in the distribution of the
securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from United HealthCare and any profit
on the resale of the securities by them may be treated as underwriting
discounts and commissions under the Securities Act.
United HealthCare may have agreements with the underwriters, dealers, and
agents to indemnify them against certain civil liabilities, including
liabilities under the Securities Act, or to contribute with respect to payments
which the underwriters, dealers or agents may be required to make.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, United HealthCare or its subsidiaries in the ordinary course of
their businesses.
United HealthCare may authorize underwriters, dealers and agents to solicit
offers by certain
58
<PAGE>
specified institutions to purchase securities from United HealthCare at the
public offering price set forth in a prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions included in
such prospectus supplement, and such prospectus supplement will set forth the
commission payable for solicitation of such contracts.
Unless the prospectus supplement states otherwise, all securities except for
common stock will be new issues of securities with no established trading
market. Any underwriters who purchase securities from United HealthCare for
public offering and sale may make a market in such securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. United HealthCare cannot give any assurance
concerning the liquidity of the trading market for any securities.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, certain
legal matters will be passed upon for United HealthCare by Dorsey & Whitney LLP
counsel to United HealthCare, and for the trusts by Richards, Layton & Finger
counsel to the trusts.
EXPERTS
The consolidated balance sheets as of December 31, 1997 and 1996, and the
consolidated statements of operations, shareholders' equity and cash flows for
each of the three years in the period ended December 31, 1997, of United
HealthCare incorporated by reference in this prospectus and elsewhere in the
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, which
is incorporated herein by reference in reliance upon the authority of said firm
as experts in giving said reports.
With respect to the unaudited condensed interim financial information for the
quarters ended March 31, June 30 and September 30, 1998 and 1997 of United
HealthCare incorporated by reference in this prospectus and elsewhere in the
registration statement, Arthur Andersen LLP has applied limited procedures in
accordance with professional standards for a review of that information.
However, their separate report thereon states that they did not audit and they
do not express an opinion on that interim financial information. Accordingly,
the degree of reliance on their report on that information should be restricted
in light of the limited nature of the review procedures applied. In addition,
the accountants are not subject to the liability provisions of Section 11 of
the Securities Act for their reports on the unaudited condensed interim
financial information because these reports are not "reports" or "parts" of the
prospectus or elsewhere in the registration statement prepared or certified by
the accountants within the meaning of Sections 7 and 11 of the Securities Act.
----------------
You should rely only on the information incorporated by reference or provided
in this prospectus supplement or the prospectus. United HealthCare has not
authorized anyone else to provide you with different information. Neither
United HealthCare, the trusts nor the underwriters are making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of those documents.
59
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$1,250,000,000
UNITED HEALTHCARE CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
DEPOSITARY SHARES
SECURITIES WARRANTS
UHC CAPITAL I
UHC CAPITAL II
UHC CAPITAL III
UHC CAPITAL IV
PREFERRED SECURITIES
Fully and unconditionally guaranteed,
as described in this prospectus, by
UNITED HEALTHCARE CORPORATION
----------------
PROSPECTUS
----------------
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee.......................................... $ 291,900
Accountants' fees and expenses................................ 30,000
Attorneys' fees and expenses.................................. 100,000
Trustee's and Depositary fees and expenses.................... 25,000
Printing and engraving expenses............................... 75,000
State qualification fees and expenses......................... 25,000
Rating agencies' fees......................................... 250,000
Miscellaneous................................................. 203,100
----------
Total..................................................... $1,000,000
==========
</TABLE>
All fees and expenses other than the SEC registration fee are estimated. The
expenses listed above will be paid by United HealthCare.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 302A.521 of the Minnesota Business Corporation Act provides that a
corporation shall indemnify any person who was or is made or is threatened to
be made a party to any proceeding, by reason of the former or present official
capacity (as defined) of such person, against judgments, penalties, fines,
settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding if
certain statutory standards are met. "Proceeding" means a threatened, pending
or complete civil, criminal, administrative, arbitration or investigative
proceeding, including one by or in the right of the corporation. Section
302A.521 contains detailed terms regarding such right of indemnification and
reference is made thereto for a complete statement of such indemnification
rights.
United HealthCare's Bylaws provide for the indemnification of such persons, for
such expenses and liabilities, in such manner, under such circumstances and to
such extent of permitted by Section 302A.521 of the Minnesota Business
Corporation Act.
United HealthCare maintains a standard policy of officers' and directors'
insurance.
In the Underwriting Agreements, forms of which are filed as Exhibit 1.1 and 1.2
hereto, the Underwriters will agree to indemnify, under certain conditions,
United HealthCare, its directors, certain of its officers and persons who
control United HealthCare within the meaning of the Securities Act of 1933, as
amended (the "Act") against certain liabilities.
ITEM 16. LIST OF EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S> <C>
*1.1 Proposed form of Underwriting Agreement.
1.2 Proposed form of Underwriting Agreement with respect to the
Preferred Securities (to be filed subsequently by Form 8-K).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S> <C>
*4.1 Senior Indenture dated as of November 15, 1998 between United
HealthCare and The Bank of New York, as Senior Note Trustee.
*4.2 Subordinated Indenture dated as of November 15, 1998 between
United HealthCare and The Bank of New York, as Subordinated
Note Trustee.
*4.3 Junior Subordinated Indenture dated November 15, 1998 between
United HealthCare and The Bank of New York, as Debenture
Trustee.
**4.4 Certificate of Trust of UHC Capital I.
**4.5 Certificate of Trust of UHC Capital II.
**4.6 Certificate of Trust of UHC Capital III.
**4.7 Certificate of Trust of UHC Capital IV.
**4.8 Trust Agreement, with respect to UHC Capital I, dated October
20, 1998, between United HealthCare, The Bank of New York as
Property Trustee and Debenture Trustee and the Administrative
Trustees named therein.
**4.9 Trust Agreement, with respect to UHC Capital II, dated October
20, 1998, between United HealthCare, The Bank of New York as
Property Trustee and Debenture Trustee and the Administrative
Trustees named therein.
**4.10 Trust Agreement, with respect to UHC Capital III dated October
20, 1998, between United HealthCare, The Bank of New York as
Property Trustee and Debenture Trustee and the Administrative
Trustees named therein.
**4.11 Trust Agreement, with respect to UHC Capital IV, dated October
20, 1998, between United HealthCare, The Bank of New York as
Property Trustee and Debenture Trustee and the Administrative
Trustees named therein.
*4.12 Form of Amended and Restated Trust Agreement.
*4.13 Form of Senior Debt Security (included as part of Exhibit
4.1).
*4.14 Form of Subordinated Debt Security (included as part of
Exhibit 4.2).
*4.15 Form of Preferred Security Certificate (included as part of
Exhibit 4.12).
*4.16 Form of Junior Subordinated Debt Security (included as part of
Exhibit 4.3).
*4.17 Form of Guarantee Agreement.
*4.18 Proposed Form of Certificate of Designations (Convertible).
*4.19 Proposed Form of Certificate of Designations (Non Convertible)
*4.20 Form of Deposit Agreement.
*4.21 Form of Depositary Receipt (included as part of Exhibit 4.20).
*4.22 Form of Common Stock Warrant Agreement.
*4.23 Form of Common Stock Warrant Certificate (included as part of
Exhibit 4.22).
*4.24 Form of Preferred Stock Warrant Agreement.
*4.25 Form of Preferred Stock Warrant Certificate (included as part
of Exhibit 4.24).
*4.26 Form of Debt Securities Warrant Agreement.
*4.27 Form of Debt Securities Warrant Certificate (included as part
of Exhibit 4.26).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S> <C>
4.28 Second Restated Articles of Incorporation of United
HealthCare. (Incorporated by referenced to Exhibit 3(a) to
United HealthCare's Annual Report on Form 10-K for the year
ended December 31, 1996).
4.29 Restated Bylaws, as amended, of United HealthCare.
(Incorporated by reference to Exhibit 3(b) to United
HealthCare Annual Report on Form 10-K for the year ended
December 31, 1997).
*5.1 Opinion and consent of Dorsey & Whitney LLP counsel to United
HealthCare as to the legality of the Debt Securities,
Depositary Shares, Preferred Stock, Common Stock, Securities
Warrants and Guarantees to be issued by United HealthCare.
*5.2 Opinion of Richards, Layton & Finger as to the legality of the
Preferred Securities to be issued by UHC Capital I, UHC
Capital II, UHC Capital III and UHC Capital IV.
*12.1 Computation of ratio of earnings to fixed charges.
*12.2 Computation of ratio of earnings to fixed charges and
preferred stock dividends.
*15.1 Letter re unaudited interim financial information.
*23.1 Consent of Arthur Andersen LLP.
*23.2 Consent of Dorsey & Whitney LLP counsel to United HealthCare
(included as part of Exhibit 5.1).
*23.3 Consent of Richards, Layton & Finger counsel (included as part
of Exhibit 5.2).
**24.1 Power of attorney from directors of United HealthCare signing
by an attorney-in-fact.
*25.1 Form T-1 Statement of Eligibility of The Bank of New York to
act as Senior Trustee under the Senior Indenture.
*25.2 Form T-1 Statement of Eligibility of the Bank of New York to
act as Subordinated Trustee under the Subordinated Indenture.
*25.3 Form T-1 Statement of Eligibility of The Bank of New York to
act as Junior Subordinated Trustee under the Junior
Subordinated Indenture.
*25.4 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee with respect to the Amended and Restated Trust
Agreement of UHC Capital I.
*25.5 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee with respect to the Amended and Restated Trust
Agreement of UHC Capital II.
*25.6 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee with respect to the Amended and Restated Trust
Agreement of UHC Capital III.
*25.7 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee with respect to the Amended and Restated Trust
Agreement of UHC Capital IV.
*25.8 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee under the Guarantee Agreement for the benefit
of the holders of Preferred Securities of UHC
Capital I.
*25.9 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee under the Guarantee Agreement for the benefit
of the holders of Preferred Securities of UHC
Capital II.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S> <C>
*25.10 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee under the Guarantee Agreement for the benefit
of the holders of Preferred Securities of UHC
Capital III.
*25.11 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee under the Guarantee Agreement for the benefit
of the holders of Preferred Securities of UHC
Capital IV.
</TABLE>
- --------
* Filed herewith.
** Previously filed.
ITEM 17. UNDERTAKINGS
Each of the undersigned registrants 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) under the Securities Act 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; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change in the information set forth in the registration
statement;
Provided, however, that paragraphs (1)(i) and (1)(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 United HealthCare pursuant to
section 13 or section 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 such 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 a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
Each of undersigned registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
United HealthCare's annual report pursuant to section
II-4
<PAGE>
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
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 each
registrant pursuant to the foregoing provisions, or otherwise, each 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 liabilities (other than the payment by each registrant
of expenses incurred or paid by a director, officer or controlling person of
such 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, each 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.
II-5
<PAGE>
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 AMENDMENT NO. 1 TO
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MINNETONKA, STATE OF MINNESOTA, ON JANUARY 11,
1999.
UNITED HEALTHCARE CORPORATION
/s/ David J. Lubben
By___________________________________
David J. Lubben, Secretary
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED
ON JANUARY 11, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ William W. McGuire President, Chief Executive Officer and
___________________________________________ Director
William W. McGuire (principal executive officer)
/s/ Arnold H. Kaplan Chief Financial Officer (principal
___________________________________________ financial officer)
Arnold H. Kaplan
/s/ Patrick J. Erlandson Chief Accounting Officer (principal
___________________________________________ accounting officer)
Patrick J. Erlandson
* Director
___________________________________________
William C. Ballard, Jr.
Director
___________________________________________
Richard T. Burke
* Director
___________________________________________
James A. Johnson
* Director
___________________________________________
Thomas H. Kean
* Director
___________________________________________
Douglas W. Leatherdale
* Director
___________________________________________
Walter F. Mondale
* Director
___________________________________________
Mary O. Mundinger
Director
___________________________________________
Robert L. Ryan
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Director
___________________________________________
William G. Spears
* Director
___________________________________________
Gail R. Wilensky
</TABLE>
/s/ David J. Lubben
*By__________________________________
David J. Lubben
As Attorney-In-Fact
II-7
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, UHC CAPITAL I
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1 TO
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MINNETONKA, AND STATE OF MINNESOTA, ON JANUARY
11, 1999.
UHC CAPITAL I
By: UNITED HEALTHCARE CORPORATION,
as Depositor
/s/ David J. Lubben
By: ____________________________________
David J. Lubben, Secretary
II-8
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, UHC CAPITAL II
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1 TO
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MINNETONKA, AND STATE OF MINNESOTA, ON JANUARY
11, 1999.
UHC CAPITAL II
By: UNITED HEALTHCARE CORPORATION,
as Depositor
/s/ David J. Lubben
By: ____________________________________
David J. Lubben, Secretary
II-9
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, UHC CAPITAL III
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1 TO
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MINNETONKA, AND STATE OF MINNESOTA, ON JANUARY
11, 1999.
UHC CAPITAL III
By: UNITED HEALTHCARE CORPORATION,
as Depositor
/s/ David J. Lubben
By: ____________________________________
David J. Lubben, Secretary
II-10
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, UHC CAPITAL IV
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1 TO
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MINNETONKA, AND STATE OF MINNESOTA, ON JANUARY
11, 1999.
UHC CAPITAL IV
By: UNITED HEALTHCARE CORPORATION,
as Depositor
/s/ David J. Lubben
By: ____________________________________
David J. Lubben, Secretary
II-11
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION PAGE
------ ----------- ----
<C> <S> <C>
*1.1 Proposed form of Underwriting Agreement......................
1.2 Proposed form of Underwriting Agreement with respect to the
Preferred Securities (to be filed subsequently by Form 8-K)..
*4.1 Senior Indenture dated as of November 15, 1998 between United
HealthCare and The Bank of New York, as Senior Note Trustee..
*4.2 Subordinated Indenture dated as of November 15, 1998 between
United HealthCare and The Bank of New York, as Subordinated
Note Trustee.................................................
*4.3 Junior Subordinated Indenture dated November 15, 1998 between
United HealthCare and The Bank of New York, as Debenture
Trustee......................................................
**4.4 Certificate of Trust of UHC Capital I........................
**4.5 Certificate of Trust of UHC Capital II.......................
**4.6 Certificate of Trust of UHC Capital III......................
**4.7 Certificate of Trust of UHC Capital IV.......................
**4.8 Trust Agreement, with respect to UHC Capital I, dated October
20, 1998, between United HealthCare, The Bank of New York as
Property Trustee and Debenture Trustee and the Administrative
Trustees named therein.......................................
**4.9 Trust Agreement, with respect to UHC Capital II, dated
October 20, 1998, between United HealthCare, The Bank of New
York as Property Trustee and Debenture Trustee and the
Administrative Trustees named therein........................
**4.10 Trust Agreement, with respect to UHC Capital III dated
October 20, 1998, between United HealthCare, The Bank of New
York as Property Trustee and Debenture Trustee and the
Administrative Trustees named therein........................
**4.11 Trust Agreement, with respect to UHC Capital IV, dated
October 20, 1998, between United HealthCare, The Bank of New
York as Property Trustee and Debenture Trustee and the
Administrative Trustees named therein........................
*4.12 Form of Amended and Restated Trust Agreement.................
*4.13 Form of Senior Debt Security (included as part of Exhibit
4.1).........................................................
*4.14 Form of Subordinated Debt Security (included as part of
Exhibit 4.2).................................................
*4.15 Form of Preferred Security Certificate (included as part of
Exhibit 4.12)................................................
*4.16 Form of Junior Subordinated Debt Security (included as part
of Exhibit 4.3)..............................................
*4.17 Form of Guarantee Agreement..................................
*4.18 Proposed Form of Certificate of Designations (Convertible)...
*4.19 Proposed Form of Certificate of Designations (Non
Convertible).................................................
*4.20 Form of Deposit Agreement....................................
*4.21 Form of Depositary Receipt (included as part of Exhibit
4.20)........................................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION PAGE
------ ----------- ----
<C> <S> <C>
*4.22 Form of Common Stock Warrant Agreement........................
*4.23 Form of Common Stock Warrant Certificate (included as part of
Exhibit 4.21).................................................
*4.24 Form of Preferred Stock Warrant Agreement.....................
*4.25 Form of Preferred Stock Warrant Certificate (included as part
of Exhibit 4.24)..............................................
*4.26 Form of Debt Securities Warrant Agreement.....................
*4.27 Form of Debt Securities Warrant Certificate (included as part
of Exhibit 4.26)..............................................
4.28 Second Restated Articles of Incorporation of United
HealthCare. (Incorporated by reference to Exhibit 3(a) to
United HealthCare's Annual Report on Form 10-K for the year
ended December 31, 1996)......................................
4.29 Restated Bylaws, as amended, of United HealthCare.
(Incorporated by reference to Exhibit 3(b) to United
HealthCare Annual Report on Form 10-K for the year ended
December 31, 1997)............................................
*5.1 Opinion and consent of Dorsey & Whitney LLP counsel to United
HealthCare as to the legality of the Debt Securities,
Depositary Shares, Preferred Stock, Common Stock, Securities
Warrants and Guarantees to be issued by United HealthCare.....
*5.2 Opinion of Richards, Layton & Finger as to the legality of the
Preferred Securities to be issued by UHC Capital I, UHC
Capital II, UHC Capital III and UHC Capital IV................
*12.1 Computation of ratio of earnings to fixed charges.............
*12.2 Computation of ratio of earnings to fixed charges and pre-
ferred stock dividends........................................
*15.1 Letter re unaudited interim financial information.............
*23.1 Consent of Arthur Andersen LLP................................
*23.2 Consent of Dorsey & Whitney LLP counsel to United HealthCare
(included as part of Exhibit 5.1).............................
*23.3 Consent of Richards, Layton & Finger (included as part of Ex-
hibit 5.2)....................................................
**24.1 Power of attorney from directors of United HealthCare signing
by an attorney-in-fact........................................
*25.1 Form T-1 Statement of Eligibility of The Bank of New York to
act as Senior Trustee under the Senior Indenture..............
*25.2 Form T-1 Statement of Eligibility of the Bank of New York to
act as Subordinated Trustee under the Subordinated Indenture..
*25.3 Form T-1 Statement of Eligibility of The Bank of New York to
act as Junior Subordinated Trustee under the Junior Subordi-
nated Indenture...............................................
*25.4 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee with respect to the Amended and Restated Trust
Agreement of UHC
Capital I.....................................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION PAGE
------ ----------- ----
<C> <S> <C>
*25.5 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee with respect to the Amended and Restated Trust
Agreement of UHC
Capital II....................................................
*25.6 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee with respect to the Amended and Restated Trust
Agreement of UHC
Capital III...................................................
*25.7 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee with respect to the Amended and Restated Trust
Agreement of UHC
Capital IV....................................................
*25.8 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee under the Guarantee Agreement for the benefit
of the holders of Preferred Securities of UHC Capital I.......
*25.9 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee under the Guarantee Agreement for the benefit
of the holders of Preferred Securities of UHC Capital II......
*25.10 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee under the Guarantee Agreement for the benefit
of the holders of Preferred Securities of UHC Capital III.....
*25.11 Form T-1 Statement of Eligibility of The Bank of New York to
act as Trustee under the Guarantee Agreement for the benefit
of the holders of Preferred Securities of UHC Capital IV......
</TABLE>
- --------
*Filed herewith.
**Previously filed.
<PAGE>
EXHIBIT 1.1
UNITED HEALTHCARE CORPORATION
UNDERWRITING AGREEMENT
Introductory. United HealthCare Corporation, a corporation incorporated
under the laws of the State of Minnesota (the "Company"), proposes to issue and
sell from time to certain of its unsecured debt securities, preferred stock and
common stock of the Company (par value $___ per share) ("Common Stock")
registered under the registration statement referred to in Section 2(a)
("Registered Securities"). The Registered Securities constituting debt
securities will be issued under a [senior/subordinated] indenture, dated as of
______, _____ ("Indenture"), between the Company and _______, as Trustee, in one
or more series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms. The Registered Securities
constituting preferred stock may be issued in one or more series, which series
may vary as to dividend rates, redemption provisions, selling prices and other
terms. Particular series or offerings of Registered Securities will be sold
pursuant to a Terms Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333- ), including a prospectus,
relating to the Registered Securities has been filed with the Securities
and Exchange Commission ("Commission") and has become effective. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities [if they are debt securities or preferred stock] and the
terms of the offering of the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)")
under the Securities Act of 1933 ("Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
<PAGE>
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of 1939
("Trust Indenture Act") and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date of each Terms Agreement referred to in Section 3, the Registration
Statement and the Prospectus will conform in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(d) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction
of its incorporation or formation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and the capital
stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(e) [If the Offered Securities are debt securities:] The Indenture has
been duly authorized and has been duly qualified under the Trust Indenture
Act; the Offered Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date (as defined below) or pursuant to Delayed Delivery
Contracts (as hereinafter defined), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and such
Offered Securities 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.
- 2 -
<PAGE>
(e) [If the Offered Securities are preferred stock:] The Offered
Securities have been duly authorized and, when the Offered Securities have
been delivered and paid for in accordance with the Terms Agreement on the
Closing Date (as defined below), such Offered Securities will have been
validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Offered
Securities.
(e) [If the Offered Securities are Common Stock:] The Offered
Securities and all other outstanding shares of capital stock of the Company
have been duly authorized; all outstanding shares of capital stock of the
Company are, and, when the Offered Securities have been delivered and paid
for in accordance with the Terms Agreement on the Closing Date (as defined
below), such Offered Securities will have been, validly issued, fully paid
and nonassessable and will conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Offered Securities.
(f) [If the Offered Securities are convertible:] When the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date, such Offered Securities will be convertible into Common
Stock of the Company in accordance with their terms [if the Offered
Securities are preferred stock] or the Indenture [if the offered Securities
are debt securities]; the shares of Common Stock initially issuable upon
conversion of such Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Common Stock.
(g) [If the Offered Securities are Common Stock or are convertible
into Common Stock:] Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment.
(h) [If the Offered Securities are Common Stock or are convertible
into Common Stock:] There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
- 3 -
<PAGE>
(i) [If the Offered Securities constitute Common Stock or are
convertible into Common Stock] [If they are Common Stock] The outstanding
shares of Common Stock [If they are convertible] or the Common Stock into
which the Offered Securities are convertible are listed on the New York
Stock Exchange (the "Stock Exchange") and the Offered Securities have been
approved for listing on the Stock Exchange, subject to notice of issuance.
[If the Offered Securities are debt securities or preferred stock] The
Offered Securities have been approved for listing on the stock exchange
indicated in the Terms Agreement, subject to notice of issuance.
(j) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
have been obtained and made under the Act [and, if the Offered Securities
are debt securities], the Trust Indenture Act and such as may be required
under state securities laws.
(k) [If the Offered Securities are debt securities] The execution,
delivery and performance of the Indenture, the Terms Agreement (including
the provisions of this Agreement) and any Delayed Delivery Contracts and
the issuance and sale of the Offered Securities [and, if the Offered
Securities are debt securities or preferred stock,] compliance with the
terms and provisions thereof will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, or any agreement
or instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
charter, by-laws or operating agreement of the Company or any such
subsidiary, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by the Terms
Agreement (including the provisions of this Agreement).
(l) The Terms Agreement (including the provisions of this Agreement)
[and, if the Offered Securities are debt securities or preferred stock,]
any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(m) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
- 4 -
<PAGE>
(n) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(o) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(p) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, or would materially and adversely affect
the ability of the Company to perform its obligations under [if the Offered
Securities are debt securities] the Indenture, the Terms Agreement
(including the provisions of this Agreement) or any Delayed Delivery
Contracts, or which are otherwise material in the context of the sale of
the Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(q) The financial statements included in the Registration Statement
and Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to be stated
therein; and if pro forma financial statements are included in the
Registration Statement and Prospectus: the assumptions used in preparing
the pro forma financial statements included in the Registration Statement
and the Prospectus provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(r) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the
- 5 -
<PAGE>
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(s) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(t) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes and the Company
agrees to comply with such Section if prior to the completion of the
distribution of the Offered Securities it commences doing such business.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and [if the Offered Securities are debt securities or preferred
stock] the terms of the Offered Securities not already specified [in the
Indenture, in the case of Offered Securities that are debt securities],
including, but not limited to, interest rate [if debt securities], dividend rate
[if preferred stock], maturity [if debt securities], any redemption provisions
and any sinking fund requirements and whether any of the Offered Securities may
be sold to institutional investors pursuant to Delayed Delivery Contracts (as
defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the Terms
Agreement (the "Lead Underwriter") and the Company agree as the time for payment
and delivery, being herein and in the Terms Agreement referred to as the
"Closing Date"), the place of delivery and payment and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering,
other than Contract Securities for which payment of funds and delivery of
securities shall be as hereinafter provided. The obligations of the Underwriters
to purchase the Offered Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Offered Securities for
sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial
- 6 -
<PAGE>
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. On the Closing Date the Company will
pay, as compensation, to the Representatives for the accounts of the
Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount or number of shares of Offered Securities to be sold pursuant
to Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Offered Securities
to be purchased by the several Underwriters and the aggregate principal amount
or number of shares of Offered Securities to be purchased by each Underwriter
will be reduced pro rata in proportion to the principal amount or number of
shares of Offered Securities set forth opposite each Underwriter's name in such
Terms Agreement, except to the extent that the Lead Underwriter determines that
such reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Lead Underwriter not later than the business day prior
to the Closing Date of the principal amount or number of shares of Contract
Securities.
[If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply] The Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in definitive form (the "Global Securities") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and registered
in the name of Cede & Co., as nominee for DTC. Interests in any permanent global
securities will be held only in book-entry form through DTC, except in the
limited circumstances described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms Agreement specifies
that the Offered Securities will not trade in DTC's Same Day Funds Settlement
System) by certified or official bank check or checks in New York Clearing House
(next day) funds or (if the Terms Agreement specifies that the Offered
Securities will trade in DTC's Same Day Funds Settlement System) in Federal
(same day) funds by official check or checks or wire transfer to an account in
New York previously designated to the Lead Underwriter by the Company at a bank
acceptable to the Lead Underwriter, in each case drawn to the order of at the
place of payment specified in the Terms Agreement on the Closing Date, against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to counsel for the Underwriters, one signed
copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Lead Underwriter, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement.
- 7 -
<PAGE>
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company promptly will
notify the Lead Underwriter of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its security holders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests. The Company will pay the expenses of printing and distributing to
the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and [if the Offered Securities are debt securities or
preferred stock] the determination of their eligibility for investment
under the laws of such jurisdictions as the Lead Underwriter designates and
will continue such qualifications in effect so long as required for the
distribution.
- 8 -
<PAGE>
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as the
Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement), for any filing fees or other expenses (including fees and
disbursements of counsel) in connection with qualification of the
Registered Securities for sale [if the Offered Securities are debt
securities or preferred stock] any determination of their eligibility for
investment under the laws of such jurisdictions as the Lead Underwriter may
designate and the printing of memoranda relating thereto [if they are debt
securities or preferred stock], for any applicable filing fee incident to,
and the reasonable fees and disbursements of counsel for the Underwriters
in connection with, the review by the National Association of Securities
Dealers, Inc. of the Registered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective purchasers
of Registered Securities and for expenses incurred in distributing the
Prospectus, any preliminary prospectuses, any preliminary prospectus
supplements or any other amendments or supplements to the Prospectus to the
Underwriters.
(i) [If the Offered Securities are debt securities or preferred stock]
The Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares of
its Common Stock or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms Agreement and ending the
number of days after the Closing Date specified under "Blackout" in the
Terms Agreement except issuances of Common Stock pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date of the Terms
Agreement, grants of employee stock options pursuant to the terms of a plan
in effect on the date of the Terms Agreement, issuances of Common Stock
pursuant to the exercise of such options or issuances of Common Stock
pursuant to the Company's dividend reinvestment plan.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements
- 9 -
<PAGE>
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of __________ confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any schedules
and any summary of earnings examined by them and included in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on any unaudited financial
statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements, if any, and any
summary of earnings included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to such
unaudited financial statements and summary of earnings for them
to be in conformity with generally accepted accounting
principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated net sales, net
operating income, net income and net income per share amounts or
other amounts constituting such "capsule" information and
described in such letter do not agree with the corresponding
amounts set forth in the unaudited consolidated financial
statements or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business
- 10 -
<PAGE>
days prior to the date of the Terms Agreement, there was any
change in thecapital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in consolidated net sales, net operating income
in the total or [if the Offered Securities are Common Stock or
are convertible into Common Stock] per share amounts of
consolidated income before extraordinary items or net income [if
the Offered Securities are debt securities] in the ratio of
earnings to fixed charges or [if the Offered Securities are
preferred stock] in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
- 11 -
<PAGE>
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or Minnesota
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Minnesota,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification;
(ii) [If the Offered Securities are debt securities] The
Indenture has been duly authorized, executed and delivered by the
Company and has been duly qualified under the Trust Indenture Act; the
Offered Securities have been duly authorized; the Offered Securities
other than any Contract Securities have been duly executed,
authenticated, issued and delivered; the Indenture and the Offered
Securities other than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, 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
- 12 -
<PAGE>
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Offered Securities
other than any Contract Securities conform, and any Contract
Securities, when so issued and delivered and sold will conform, to the
description thereof contained in the Prospectus;
(ii) [If the Offered Securities are Preferred Stock] The Offered
Securities have been duly authorized; the Offered Securities other
than any Contract Securities have been validly issued and are fully
paid and nonassessable; any Contract Securities, when issued,
delivered and sold pursuant to Delayed Delivery Contracts, will be
validly issued, fully paid and non-assessable; and the Offered
Securities other than any Contract Securities conform, and any
Contract Securities, when so issued, delivered and sold, will conform,
to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to
the Offered Securities;
(ii) [If the Offered Securities are Common Stock] The Offered
Securities and all other outstanding shares of the Common Stock of the
Company have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Offered Securities;
(iii) [If the Offered Securities are convertible:] The Offered
Securities other than any Contract Securities are, and any Contract
Securities, when (if the Offered Securities are debt securities)
executed, authenticated, issued and delivered in the manner provided
in the Indenture and sold pursuant to Delayed Delivery Contracts or
(if the Offered Securities are preferred stock) when issued, delivered
and sold pursuant to Delayed Delivery Contracts, will be convertible
into Common Stock of the Company in accordance with (if they are debt
securities) the Indenture or (if they are preferred stock) their
terms]; the shares of Common Stock initially issuable upon conversion
of the Offered Securities have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid and nonassessable; the outstanding
shares of Common Stock have been duly authorized and validly issued,
are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Common Stock;
(iv) [If the Offered Securities are Common Stock or are
convertible into Common Stock:] There are no contracts, agreements or
understandings known to such counsel between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the
- 13 -
<PAGE>
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Act;
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and, [if the Offered
Securities are debt securities] the Trust Indenture Act and such as
may be required under state securities laws;
(vi) The execution, delivery and performance of [if the Offered
Securities are debt securities] the Indenture, the Terms Agreement
(including the provisions of this Agreement) and, [if the Offered
Securities are debt securities or preferred stock] any Delayed
Delivery Contracts and the issuance and sale of the Offered Securities
and, [if the Offered Securities are debt securities or preferred
stock] compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or by-laws
of the Company or any such subsidiary, and the Company has full power
and authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(vii) The Registration Statement has become effective under the
Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration Statement and
the Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no
reason to believe that such registration statement, as of its
effective date, the Registration Statement, as of the date of the
Terms Agreement or as of the Closing Date, or any amendment thereto,
as of its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of
- 14 -
<PAGE>
the Terms Agreement or as of such Closing Date, or any amendment
or supplement thereto, as of its date or as of the Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such
counsel do not know of any legal or governmental proceedings
required to be described in the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the
Registration Statement or the Prospectus; and
(viii) The Terms Agreement (including the provisions of this
Agreement) and, [if the Offered Securities are debt securities or
preferred stock] any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
(e) The Representatives shall have received from , counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
Securities, the Registration Statement, the Prospectus and other related
matters as the Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, may
rely as to the incorporation of the Company and all other matters governed
by law upon the opinion of referred to above.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission and that, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Prospectus
or as described in such certificate.
- 15 -
<PAGE>
(g) The Representatives shall have received a letter, dated the
Closing Date, of which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three business days prior to the Closing Date for
the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus or preliminary prospectus supplement, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives, if any, specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information
- 16 -
<PAGE>
furnished by any Underwriter consists of the information described as such
in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
- 17 -
<PAGE>
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
[if debt securities] the aggregate principal amount or [if preferred stock or
Common Stock] number of shares of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total [if debt securities] principal amount or [if preferred stock or Common
Stock] number of shares of Offered Securities, the Lead Underwriter may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate [if
debt securities] principal amount or [if preferred stock or Common Stock] number
of shares of Offered Securities with respect to which such default or defaults
occur exceeds 10% of the total [if debt securities] principal amount or [if
preferred stock or Common Stock] number of shares of Offered Securities and
arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. [If the
- 18 -
<PAGE>
Offered Securities are debt securities or preferred stock] The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the [if debt securities] principal amounts or [if
preferred stock] numbers of shares of the Offered Securities set forth opposite
their names in the Terms Agreement as a result of Delayed Delivery Contracts
entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to them
at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at United HealthCare Corporation, 300 Opus
Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, Attention: Secretary.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
- 19 -
<PAGE>
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ___,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
- 20 -
<PAGE>
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of _______ in The City of _______ in any suit or
proceeding arising out of or relating to the Terms Agreement (including the
provisions of this Agreement) or the transactions contemplated thereby. As its
authorized agent in the Borough of _______ in The City of _______ upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to the Company by
the person serving the same to the address provided in Section 9, shall be
deemed in every respect effective service of process upon the Company in any
such suit or proceeding. The Company further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect for a period of seven years from the date of the Terms
Agreement.
UNITED HEALTHCARE CORPORATION
By:
---------------------------------
Its:
--------------------------------
[UNDERWRITER/S]
By:
---------------------------------
Its:
--------------------------------
- 21 -
<PAGE>
ANNEX I
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]
United HealthCare Corporation
c/o [LEAD UNDERWRITER]
[Address of Lead Underwriter]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from United HealthCare
Corporation, a Minnesota corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on _______, [YEAR] ("Delivery Date"),]
[$]..............[shares]
- --principal amount--of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated ____________,____ and
a Prospectus Supplement dated ________,____ relating thereto, receipt of copies
of which is hereby acknowledged, at-- % of the principal amount thereof plus
accrued interest, if any,--$___ per share plus accrued dividends, if any,--and
on the further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the--principal--amounts set
forth below:
PRINCIPAL AMOUNT
NUMBER
DELIVERY DATE OF SHARES
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day) funds
at the office of __________ at _______ A.M./P.M. on--the--such--Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned--for delivery on such Delivery Date--in definitive [If debt issue,
insert--fully registered] form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior
to--the--such--Delivery Date.
- 22 -
<PAGE>
It is expressly agreed that the provisions for delayed delivery and payment are
for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on--the--each--Delivery Date shall be subject only to
the conditions that (1) investment in the Securities shall not
at--the--such--Delivery Date be prohibited under the laws of any jurisdiction in
the United States to which the undersigned is subject and (2) the Company shall
have sold to the Underwriters the total--principal amount--number of shares--of
the Securities less the--principal amount---number of shares--thereof covered by
this and other similar Contracts. The undersigned represents that its investment
in the Securities is not, as of the date hereof, prohibited under the laws of
any jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by--a copy--copies--of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
---------------------------------
(Name of Purchaser)
By
-------------------------------
---------------------------------
(Title of Signatory)
---------------------------------
---------------------------------
(Address of Purchaser)
Accepted, as of the above date.
United HeaalthCare Corporation
By
--------------------------------
[Insert title]
- 23 -
<PAGE>
UNITED HEALTHCARE CORPORATION
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
TITLE: [ %] [Floating Rate]--Notes--Debentures--Bonds--
Due _________________.
PRINCIPAL AMOUNT: $___________.
INTEREST: [ % per annum, from _____________,[YEAR], payable
semiannually on ___________ and ______ commencing _________,[YEAR], to
holders of record on the preceding ____ or ____, as the case may be.]
[Zero coupon.]
MATURITY:____________, [YEAR].
OPTIONAL REDEMPTION:
SINKING FUND:
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
_____________,[YEAR]. Underwriters' fee is __% of the principal amount
of the Contract Securities.]
PURCHASE PRICE: _____% of principal amount, plus accrued interest[, if
any,] from ____________,[YEAR].
- 24 -
<PAGE>
EXPECTED REOFFERING PRICE: _______% of principal amount, subject to
change by the [Representative[s] [Underwriters].
CLOSING:_____________A.M. on ___________,[YEAR], at ______________, in
Federal (same day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry Only
via DTC. The Offered Securities will trade in DTC's Same Day Funds
Settlement System.]
BLACKOUT: Until ______ days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Offered Securities will be made available for checking and
packaging at the office of ___________ at least 24 hours prior to the
Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom
of the prospectus supplement cover page concerning the terms of the
offering by the Underwriters, the legend concerning over-allotments--and--,
--stabilizing [and passive market making] on the inside front cover page of
the prospectus supplement--and--, --the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the
prospectus supplement [If paragraph regarding passive market making is
included, insert--and the information contained in the paragraph under the
caption "Underwriting" in the prospectus supplement] [If applicable,
insert--; and (ii) the following information in the prospectus supplement
furnished on behalf of [insert name of Underwriter]: [insert description of
information, such as material relationship disclosure under the caption
"Underwriting" in the prospectus supplement].
If the Offered Securities are denominated in a currency other than
United States dollars, make appropriate modifications to provisions of the
Terms Agreement (e.g., type of funds specified under "Closing") and
consider including in the Terms Agreement such changes and additions to the
Underwriting Agreement as may be appropriate in the circumstances, e.g.,
expanding the blackout provision in Section 4 to cover debt securities
denominated in the currency in which the Offered Securities are
denominated, expanding Section 5(c)(iv) to cover a banking moratorium
declared by authorities in the country of such currency, expanding Section
5(c)(v) to cover a change or prospective change in, or governmental action
affecting, exchange controls applicable to such currency, and modifying
Section 5(d) to permit a statement to the effect that enforcement of the
Indenture and the Offered Securities is subject to provisions of law which
may require that a judgment for money damages rendered by a court in the
United States be expressed only in United States dollars and appropriate
exceptions as to any provisions requiring payment of additional amounts.
Also consider requiring an opinion of counsel for the Company confirming
information as to United States tax matters in the Prospectus and an
opinion of foreign counsel for the Company regarding such matters as
foreign consents, approvals, authorizations, licenses, waivers, withholding
taxes, transfer or stamp taxes and any information as to foreign laws in
the Prospectus.
- 25 -
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company
and the several Underwriters in accordance with its terms.
Very truly yours,
UNITED HEALTHCARE CORPORATION
By_________________________________
[Insert title]
The foregoing Terms Agreement is
hereby confirmed and accepted as
of the date first above written.
[If no co-representative, use
first confirmation form. If
co-representative, use second.]
[LEAD UNDERWRITER]
By
------------------------------
[Insert title]
[Acting on behalf of itself
and as the Representative
of the several Underwriters.]
[LEAD UNDERWRITER]
- --------------------------------
- --------------------------------
[Acting on behalf of themselves
and as the Representatives of
the several Underwriters.]
By: [LEAD UNDERWRITER]
By:
-----------------------------
[Insert title]
- 26 -
<PAGE>
SCHEDULE A
PRINCIPAL
UNDERWRITER AMOUNT
----------- ------
$
Total
- 27 -
<PAGE>
UNITED HEALTHCARE CORPORATION
("COMPANY")
PREFERRED--COMMON--STOcK
TERMS AGREEMENT
____________, 19__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
TITLE:
NUMBER OF SHARES:
DIVIDEND RATE:
(1) OPTIONAL REDEMPTION:
(1) SINKING FUND:
(1) LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
(1) DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
___________, _______. Underwriters' fee is $________ per share of the
Contract Securities.]
PURCHASE PRICE: $_________ per share [If preferred stock issue,
insert--plus accrued dividends[, if any,] from _______, _______ ].
EXPECTED REOFFERING PRICE: $________ per share, subject to change by
the [Representative[s]] [Underwriters].
- 28 -
<PAGE>
CLOSING: _______A.M. on __________,____ , at _________, in New York
Clearing House (next day) funds.
UNDERWRITER[S']['S] COMPENSATION: $________payable to the
[Representative[s] for the proportionate accounts of the]
Underwriter[s] on the Closing Date.
BLACKOUT: Until days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective numbers of shares of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom
of the prospectus supplement cover page concerning the terms of the
offering by the Underwriters, the legend concerning over-allotments--and--,
--stabilizing [and passive market making] on the inside front cover page of
the prospectus supplement--and--, --the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the
prospectus supplement [If paragraph regarding passive market making is
included, insert--and the information contained in the paragraph under the
caption "Underwriting" in the prospectus supplement] [If applicable,
insert--; and (ii) the following information in the prospectus supplement
furnished on behalf of [insert name of Underwriter]: [insert description of
information, such as material relationship disclosure under the caption
"Underwriting" in the prospectus supplement].(1)
- ----------
(1) Special care should be taken to ensure that the description of the
information, including caption references and any references to particular
paragraphs or sentences, matches the final Prospectus.
- 29 -
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
UNITED HEALTHCARE CORPORATION
BY
-----------------------------
[INSERT TITLE]
THE FOREGOING TERMS AGREEMENT IS HEREBY
CONFIRMED AND ACCEPTED AS OF THE DATE
FIRST ABOVE WRITTEN.
[If no co-representative, use
first confirmation form. If
co-representative, use second.]
[LEAD UNDERWRITER]
By
----------------------------
[Insert title]
[Acting on behalf of itself
and as the Representative of
the several Underwriters.]
[LEAD UNDERWRITER]
- ------------------------------
- ------------------------------
[Acting on behalf of themselves
and as the Representatives of
the several Underwriters.]
By: [LEAD UNDERWRITER]
By
----------------------------
[Insert title]
- 30 -
<PAGE>
SCHEDULE A
NUMBER
UNDERWRITER OF
SHARES
==============
==============
- 31 -
<PAGE>
Exhibit 4.1
- --------------------------------------------------------------------------------
UNITED HEALTHCARE CORPORATION
to
--------------
THE BANK OF NEW YORK
as Trustee
--------------
SENIOR DEBT SECURITIES
--------------
INDENTURE
Dated as of November 15, 1998
- --------------------------------------------------------------------------------
<PAGE>
UNITED HEALTHCARE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of November 15, 1998
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
310 (a)(1)...............................
812
(a)(2)............................... 812
(a)(3)............................... N.A.
(a)(4)............................... N.A.
(a)(5)............................... 812
(b)............................... 809; 812
(c)............................... N.A.
311 (a)............................... 813
(b)............................... 813
(c)............................... N.A.
312 (a)............................... 806
(b)............................... 109
(c)............................... 109
313 (a)............................... 807
(b)(1)............................... N.A.
(b)(2)............................... 807
(c)............................... 807
(d)............................... 807
314 (a)............................... 504
(b)............................... N.A.
(c)(1)............................... 104
(c)(2)............................... 104
(c)(3)............................... N.A.
(d)............................... N.A.
(e)............................... 104
(f)............................... N.A.
315 (a)............................... 801
(b)............................... 805
(c)............................... 801
(d)............................... 801
(e)............................... 711
i
<PAGE>
316 (a) (last sentence).......................... 101
(a)(1)(A).......................... 705
(a)(1)(B).......................... 704
(a)(2).......................... N.A.
(b).......................... 707
(c).......................... 106
317(a)(1).......................... 708
(a)(2).......................... 709
(b).......................... 503
318 (a).......................... 1301
(b).......................... N.A.
(c).......................... 1301
N.A. means not applicable.
- ------------------
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 101. Definitions.................................................2
Section 102. Other Definitions...........................................9
Section 103. Incorporation by Reference of TIA..........................10
Section 104. Compliance Certificates and Opinions.......................10
Section 105. Form of Documents Delivered to Trustee.....................11
Section 106. Acts of Holders............................................11
Section 107. Notices, Etc., to Trustee and Company......................13
Section 108. Notice to Holders; Waiver..................................14
Section 109. Communication by Holders with Other Holders................14
Section 110. Rules of Construction......................................14
ARTICLE II. SECURITY FORMS
Section 201. Forms Generally............................................15
Section 202. Form of Trustee's Certificate of Authentication............15
Section 203. Form of Legend for Global Securities.......................16
ARTICLE III. THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.......................16
Section 302. Denominations..............................................19
Section 303. Execution, Authentication, Delivery and Dating.............19
Section 304. Temporary Securities.......................................21
Section 305. Registration, Registration of Transfer and Exchange........22
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...........23
Section 307. Payment of Interest; Interest Rights Preserved.............24
Section 308. Persons Deemed Owners......................................25
Section 309. Cancellation...............................................26
Section 310. Computation of Interest....................................26
Section 311. CUSIP Number...............................................26
ARTICLE IV. REDEMPTION OF SECURITIES
Section 401. Applicability of Article...................................27
Section 402. Notices to Trustee.........................................27
Section 403. Selection of Securities to Be Redeemed.....................27
Section 404. Notice of Redemption.......................................28
Section 405. Effect of Notice of Redemption.............................29
Section 406. Deposit of Redemption Price................................29
Section 407. Securities Payable on Redemption Date......................29
Section 408. Securities Redeemed in Part................................29
ARTICLE V. COVENANTS
Section 501. Payment of Principal, Premium and Interest.................30
Section 502. Maintenance of Office or Agency............................30
Section 503. Money for Securities Payments to Be Held in Trust..........31
iii
<PAGE>
Section 504. Commission Reports.........................................32
Section 505. Compliance Certificate.....................................33
Section 506. Taxes......................................................33
Section 507. Stay, Extension and Usury Laws.............................33
Section 508. Corporate Existence........................................34
Section 509. Limitation on Liens........................................34
Section 510. Calculation of Original Issue Discount.....................34
ARTICLE VI. SUCCESSORS
Section 601. Limitations On Mergers, Consolidations or Sales of Assets..35
Section 602. Successor Corporation Substituted..........................35
ARTICLE VII. DEFAULTS AND REMEDIES
Section 701. Events of Default..........................................36
Section 702. Acceleration...............................................37
Section 703. Other Remedies.............................................38
Section 704. Waiver of Past Defaults. ..................................38
Section 705. Control by Majority. ......................................38
Section 706. Limitation on Suits. ......................................39
Section 707. Rights of Holders to Receive Payment.......................39
Section 708. Collection Suit by Trustee.................................39
Section 709. Trustee May File Proofs of Claim. .........................40
Section 710. Priorities. ...............................................40
Section 711. Undertaking for Costs......................................41
ARCTICLE VIII. TRUSTEE
Section 801. Duties of Trustee. ........................................41
Section 802. Rights of Trustee. ........................................42
Section 803. Individual Rights of Trustee...............................43
Section 804. Trustee's Disclaimer.......................................43
Section 805. Notice of Defaults. .......................................43
Section 806. Preservation of Information................................43
Section 807. Reports by Trustee to Holders..............................43
Section 808. Compensation and Indemnity.................................44
Section 809. Resignation and Removal; Appointment of Successor..........45
Section 810. Acceptance of Appointment by Successor.....................46
Section 811. Merger, Conversion, Consolidation or
Succession to Business.....................................47
Section 812. Eligibility; Disqualification..............................48
Section 813. Preferential Collection of Claims Against Company..........48
Section 814. Appointment of Authenticating Agent........................48
Section 815. Trustee's Application for Instructions from the Company....50
ARTICLE IX. DISCHARGE OF INDENTURE
Section 901. Defeasance and Discharge of this Indenture
and the Securities.........................................50
Section 902. Legal Defeasance and Discharge.............................50
Section 903. Covenant Defeasance........................................51
iv
<PAGE>
Section 904. Conditions to Legal or Covenant Defeasance.................51
Section 905. Deposited Money and Government Securities
to be Held in Trust; Other Miscellaneous Provisions........53
Section 906. Repayment to Company.......................................53
Section 907. Reinstatement..............................................54
ARTICLE X. AMENDMENT, SUPPLEMENT AND WAIVER
Section 1001. Without Consent of Holders.................................54
Section 1002. With Consent of Holders....................................55
Section 1003. Execution of Supplemental Indentures.......................56
Section 1004. Effect of Supplemental Indentures..........................56
Section 1005. Compliance with TIA........................................57
Section 1006. Revocation and Effect of Consents..........................57
Section 1007. Reference in Securities to Supplemental Indentures.........57
Section 1008. Notice of Supplemental Indentures..........................57
ARTICLE XI. SINKING FUNDS
Section 1101. Applicability of Article...................................58
Section 1102. Satisfaction of Sinking Fund Payments with Securities......58
Section 1103. Redemption of Securities for Sinking Fund..................58
ARTICLE XII. REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
Section 1201. Applicability of Article...................................59
Section 1202. Notice of Repurchase Date..................................59
Section 1203. Deposit of Repurchase Price................................59
Section 1204. Securities Payable on Repurchase Date......................60
Section 1205. Securities Repurchased in Part.............................60
ARTICLE XIII. MISCELLANEOUS
Section 1301. TIA Controls...............................................61
Section 1302. Rules by Trustee and Agents................................61
Section 1303. Legal Holidays.............................................61
Section 1304. No Personal Liability of Directors, Officers, Employees
and Stockholders...........................................61
Section 1305. Duplicate Originals........................................61
Section 1306. Governing Law..............................................61
Section 1307. No Adverse Interpretation of Other Agreements..............62
Section 1308. Successors.................................................62
Section 1309. Severability...............................................62
Section 1310. Counterpart Originals......................................62
Section 1311. Table of Contents, Headings, etc...........................62
v
<PAGE>
INDENTURE, dated as of November 15, 1998, between UNITED HEALTHCARE
CORPORATION, a corporation duly organized and existing under the laws of the
State of Minnesota (herein called the "Company"), having its principal office at
300 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, and THE BANK
OF NEW YORK, a New York banking corporation, as Trustee (herein called the
"Trustee"), having its principal corporate trust office at 101 Barclay Street,
Floor 21 West, New York, New York 10286.
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 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 covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof
(including holders from time to time of the Securities of any series held
through a Holder which is a Depositary (as defined herein)), as follows:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 101. Definitions.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Authenticating Agent, Security Registrar, Paying Agent or
co-registrar.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized (generally or in any particular respect) committee appointed by
that board.
1
<PAGE>
"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. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution (including establishment of any series of
the Securities and the forms and terms thereof), such action may be taken by any
committee, officer or employee of the Company authorized to take such action
(generally or in any particular respect) by a Board Resolution.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means (i) in the case of a corporation, corporate stock
without limitation, common stock and preferred stock, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, (iii) in
the case of a partnership, partnership interests (whether general or limited)
and (iv) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument, as obligor under the Securities, unless and until a successor
replaces the Company in accordance with Article 6 hereof and thereafter means
such successor.
"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 President,
its Chief Executive Officer, its Chief Operating Officer, its Chief Financial
Officer, a Vice President, its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, or by any other officer of the Company authorized to
sign by Board Resolution, and delivered to the Trustee.
"Consolidated Net Worth" means, with respect to any Person as of any date,
the sum of (i) the consolidated equity of the common stockholders of such Person
and its consolidated Subsidiaries as of such date, plus (ii) the respective
amounts reported on such Person's balance sheet as of such date with respect to
any series of preferred stock (other than Disqualified Stock) that by its terms
is not entitled to the payment of dividends unless such dividends may be
declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of tangible
assets of a going concern business made within 12 months after the acquisition
of such business) subsequent to the date of this Indenture in the book value of
any asset owned by such Person or a consolidated Subsidiary of such Person, and
(y) all unamortized debt discount and expense and unamortized deferred charges
as of such date, all of the foregoing determined in accordance with GAAP.
2
<PAGE>
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which at the date of original execution of the Indenture is 101 Barclay Street,
Floor 21 West, New York, New York, 10286.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"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
clearing agency registered under the Exchange Act, specified for that purpose as
contemplated by Section 301 or any successor clearing agency registered under
the Exchange Act as contemplated by Section 305, 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.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Securities mature.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Security" means a Security bearing the legend specified in Section
203 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
nominee.
"Government Securities" means securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" means any indebtedness for money borrowed.
"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 and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument due to the appointment of one or
3
<PAGE>
more separate Trustees for any one or more separate series of Securities
pursuant to Section 809(e), "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, 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 and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"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.
"Lien" means, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind.
"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" means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary, any Assistant
Secretary and any Vice President of the Company or any Subsidiary, as the case
may be.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Operating Officer,
the Chief Financial Officer, a Vice President or an Assistant Vice President of
the Company, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means an opinion from legal counsel. The counsel may
be an employee of or counsel to the Company, any Subsidiary or 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 702.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
4
<PAGE>
(i) Securities theretofore canceled 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 306 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 or whether a
quorum is present at a meeting of Holders of Securities, (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 702, and (ii) 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 a Responsible Officer of the Trustee actually 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 (and premium, if any) and/or interest on any Securities on behalf
of the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest (or formula for determining the rate or rates of
interest), if any, thereon, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Company or its agents upon the issuance of such Securities.
"Permitted Liens" means
(i) any Lien upon property, stock or indebtedness of an entity
existing at the time such entity becomes a Restricted Subsidiary;
5
<PAGE>
(ii) any Lien upon property, stock or indebtedness existing at the
time of the acquisition thereof by the Company or a Restricted Subsidiary
(whether directly or by merger, consolidation or otherwise) or granted to
secure payment of any part of the purchase price thereof or granted to
secure any Indebtedness incurred to finance the purchase thereof (provided
that such Indebtedness is incurred before, concurrently with or within 270
days after the completion of such purchase);
(iii) any Lien upon property to secure any part of the cost of
development, construction, alteration, repair or improvement of such
property or granted to secure Indebtedness incurred to finance such cost
(provided that such Indebtedness is incurred before, concurrently with or
within 270 days after the completion of such development, construction,
alteration, repair or improvement);
(iv) any Lien securing Indebtedness of a Restricted Subsidiary owing
to the Company or to another Restricted Subsidiary;
(v) Any Lien existing on the date of initial issuance of the
applicable Securities;
(vi) any Lien on property of the Company or a Restricted Subsidiary in
favor of the United States of America or any State or political subdivision
thereof, or in favor of any country or any political subdivision thereof,
to secure payment pursuant to any contract or statute, rule or regulation;
and
(vii) any extension, renewal or replacement, in whole or in part, of
any Lien referred to in the foregoing six subparts; provided, however, that
the principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such extension,
renewal or replacement; and provided, further, that such Lien shall be
limited to all or part of the property which was subject to the Lien so
extended, renewed or replaced.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization (including
any subdivision or ongoing business of any such entity or substantially all of
the assets of any such entity, subdivision or business).
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and/or
interest on the Securities of that series are payable.
"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 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
6
<PAGE>
"Principal Property" means the land, land improvements, buildings and
fixtures (to the extent they constitute real property interests) (including any
leasehold interest therein) constituting the Company's principal corporate
office or any other discrete facility of the Company and its Subsidiaries
(whether owned at the date of initial issuance of the applicable Securities or
thereafter acquired), provided in each case that such facility
(i) is owned by the Company or any Subsidiary,
(ii) is located within any of the present 50 states of the United
States of America or the District of Columbia,
(iii) has not been determined in good faith by the Company's Board of
Directors not to be of material importance to the business conducted by the
Company and its Subsidiaries taken as a whole, and
(iv) has a book value as on the date as of which the determination is
being made in excess of 5% of the Consolidated Net Worth of the Company as
of the most recent quarterly consolidated balance sheet of the Company
prepared in accordance with GAAP.
"Redemption Date", when used with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security or portion
thereof 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 301.
"Repurchase Date", when used with respect to any Security or portion
thereof to be repurchased, means the date fixed for such repurchase pursuant to
this Indenture.
"Repurchase Price", when used with respect to any Security or portion
thereof to be repurchased, means the price at which it is to be repurchased
pursuant to this Indenture.
"Responsible Officer", shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means each Subsidiary of the Company existing as of
the date of this Indenture and each Subsidiary of the Company thereafter created
or acquired,
7
<PAGE>
unless expressly excluded by resolution of the Board of Directors of the Company
before, or within 120 days following, such creation or acquisition.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"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, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect on
the date on which this Indenture is qualified under the TIA.
"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.
Section 102. Other Definitions.
Defined in
Term Section
---- -------
"Bankruptcy Law" 701
"Covenant Defeasance" 903
8
<PAGE>
"Custodian" 701
"Event of Default" 701
"Legal Defeasance" 902
"Legal Holiday" 1303
"Notice of Default" 701
"Payment Default" 701
Section 103. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Securities means the Company and any successor obligor
upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by the Commission rule under the
TIA have the meanings so assigned to them.
Section 104. 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 an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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;
9
<PAGE>
(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 whether such covenant or condition has been
complied with; and
(4) a statement whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Every such certificate provided under this Indenture shall be without
personal recourse to the individual executing the same and may include an
express statement to such effect.
Section 105. 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 any 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, opinion or representations
with respect to the matters upon which such officer's 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. Any certificate or opinion of counsel may be stated to be based on the
certificates or opinions of other counsel, in which event it shall be
accompanied by a copy of such other certificates or opinions.
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. All applications, requests, certificates, statements or
other instruments given under this Indenture shall be without personal recourse
to any individual giving the same and may include an express statement to such
effect.
Section 106. Acts of Holders.
(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
10
<PAGE>
(including Persons who hold their Securities through a Holder which is a
Depositary) in person or by an 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 801)
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 by this
Indenture to be made, given or taken by the 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 in any reasonable manner, provided
that, in any instance, the Trustee may require further proof with respect
to any matter referred to in this Section.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The Company may fix any day as the record date for the purpose of
determining the Holders (including Persons who hold Securities through a
Holder which is a Depositary) 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 TIA ss. 312)
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 (including Persons
who hold Securities through a Holder which is a Depositary) 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.
With regard to any action that may be given or taken hereunder only by
Holders (including Persons who hold their Securities through a Holder which is a
Depositary) of a requisite principal amount of Outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set
pursuant to this subsection (d), the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders (including Persons who hold Securities through a
Holder which is a Depositary) of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this subsection (d), the
11
<PAGE>
Company may, on one or more occasions at its option, extend such date to any
later date. Nothing in this subsection (d) shall prevent any Holder (or any duly
appointed agent thereof) from giving or taking, after any expiration date, any
action identical to, or, at any time, contrary to or different from any action
given or taken, or purported to have been given and taken, hereunder by a Holder
on or prior to such date, in which event the Company may set a record date in
respect hereof pursuant to this subsection (d).
Notwithstanding the foregoing, upon actual receipt by a Responsible Officer
of the Trustee, with respect to Securities of any series, of (i) any Notice of
Default pursuant to Section 701, (ii) any declaration or acceleration, or any
rescission and annulment of any such declaration, pursuant to Section 702, or
(iii) any waiver given pursuant to Section 704 (any such notice, declaration,
rescission and annulment, or waiver being referred to herein as a "Direction"),
a record date shall automatically and without any other action by any Person be
set for the purpose of determining the Holders (including Persons who hold
Securities through a Holder which is a Depositary) of Outstanding Securities of
such series entitled to join in such Direction, which record date shall be the
close of business on the day the Trustee receives such Direction. The Holders
(including Persons who hold Securities through a Holder which is a Depositary)
of Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Direction, whether or not such Holders remain Holders after such record date;
provided that, unless such Direction shall have become effective by virtue of
Holders (including Persons who hold Securities through a Holder which is a
Depositary) of the requisite principal amount of Outstanding Securities of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such Direction shall
automatically and without any action by any Person be canceled and be of no
further effect. Nothing in this paragraph shall prevent a Holder (or duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a Direction contrary to or different from, or, after the
expiration of such period, identical to, a Direction that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date in respect thereof shall be set pursuant to this subsection (d).
(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.
Section 107. 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 (unless otherwise herein expressly provided) if
made, given, furnished
12
<PAGE>
or filed in writing to or with a Responsible Officer of the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, 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 specified in the
first paragraph of this instrument (Attention: General Counsel) or at any
other address previously furnished in writing to a Responsible Officer of
the Trustee by the Company.
Section 108. 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 (including
Persons who hold Securities through a Holder which is a Depositary if the name
and address of such beneficial holder has been provided in writing to the Person
required to give such notice prior to the date such notice is given) affected by
such event, at such Holder's address as it appears in the Security Register or
as provided in writing by the Depositary, not later than the latest date, and
not earlier than the earliest date, 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. Any
notice mailed to the Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice. 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
a Responsible Officer of 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 by or with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 109. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 110. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
13
<PAGE>
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE II.
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series, including Global Securities representing
Securities of such series, shall be in the form established, without the
approval of any Holders or the Trustee, by or pursuant to a Board Resolution in
accordance with Section 301 or by 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 executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities may be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
Section 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein and issued
pursuant to the within-mentioned Indenture.
Dated:
-------------
The Bank of New York, as Trustee
By
------------------------------
Authorized Signatory
14
<PAGE>
Section 203. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall, in
addition to the provisions established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto in accordance with Section 201,
bear a legend in substantially the following form or such similar form as may be
required by the Depositary:
"Unless this certificate is presented by an authorized representative of
[Depositary] to the issuer or to its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name
of [Depositary Nominee] or such other name as requested by an authorized
representative of [Depositary] and any payment is made to [Depositary
Nominee], ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
[Depositary Nominee], has an interest herein."
ARTICLE III.
THE SECURITIES
Section 301. 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, without the approval of any Holders or the Trustee, by or pursuant
to authority granted by one or more Board Resolutions, and, subject to Section
303, there shall be set forth in an Officers' Certificate, or established in one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, all or any of the following, as applicable:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series) and the
form of the Securities of the 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 lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 1007 and 1205 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder) and the absence of such limitation shall mean that the
Company may issue from time to time additional securities of such series
without limitation as to aggregate principal amount;
(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
15
<PAGE>
Securities) is registered at the close of business on the Regular Record
Date for such interest;
(4) the date or dates, or the method by which such date or dates are
determined or extended, on which the principal or installments of principal
and premium, if any, of the Securities of the series is or are payable;
(5) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the Regular Record Date for the interest payable
on any Interest Payment Date and the circumstances, if any in which the
Company may defer interest payments and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day months;
(6) whether the Company shall be required to maintain an office in the
Borough of Manhattan, the City of New York in accordance with Section 502
hereof and the place or places, if any, where the principal of (and
premium, if any) and interest on Securities of the series shall be payable,
any Securities of the series may be surrendered for registration of
transfer or exchange and notices and demands to or upon the Company with
respect to the Securities of the series and this Indenture may be served,
other than or in addition to the Corporate Trust Office of the Trustee and
any office maintained for such purpose in the Borough of Manhattan, the
City of New York in accordance with Section 502 hereof;
(7) if applicable, 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) whether the Securities of the series will be convertible into or
exchangeable for shares of Common Stock, and if so, the terms and
conditions upon which such Securities will be so convertible or
exchangeable, and any deletions from or modifications or additions to this
Indenture to permit or to facilitate the issuance of such convertible or
exchangeable Securities or the administration thereof;
(10) the identity of each Security Registrar and Paying Agent, if
other than or in addition to the Trustee;
16
<PAGE>
(11) if the amount of principal of, or any premium or interest on, any
Securities of the series may be determined by reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(12) the applicability of, and any addition to or change in, the
covenants and definitions currently set forth in this Indenture;
(13) if other than denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000, the denominations in which
Securities of the series shall be issuable;
(14) any other event or events of default applicable with respect to
Securities of the series in addition to or in lieu of those provided in
Section 701 and any change in the right of the Trustee or the Holders to
declare the principal of or any premium or interest on such Securities due
and payable;
(15) if less 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
702;
(16) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, if so, (a) the
Depositary with respect to such Global Security or Securities and (b) the
circumstances under which any such Global Security may be exchanged for
Securities registered in the name of, and any transfer of such Global
Security may be registered to, a Person other than such Depositary or its
nominee, if other than as set forth in Section 305;
(17) if applicable, that the Securities of the series, in whole or any
specified part, shall not be defeasible pursuant to Section 902 or Section
903 or both such Sections and, if other than by a Company Order, the manner
in which any election by the Company to defend such Securities shall be
evidenced;
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 1001(v)); and
(19) CUSIP numbers.
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above and, subject to Section 303, 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 the same time. Unless otherwise provided, Securities of a single
series may have different terms, and a series may be reopened, without the
consent of the Holders of Securities of such series, for issuance of additional
Securities of such series.
17
<PAGE>
If any of the terms of the 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 the series.
With respect to Securities of a series offered in a Periodic Offering, such
Board Resolution and Officers' Certificate or supplemental indenture may provide
general terms or parameters for Securities of such series and provide either
that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a Company
Order as contemplated by the third paragraph of Section 303.
Section 302. Denominations.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 301. 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 or any amount in excess thereof which is an integral
multiple of $1,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, its Chief Executive Officer, its Chief Operating
Officer, its Chief Financial Officer or one of its Vice Presidents, and 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, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the actual receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for establishing the specific
terms of particular Securities being so offered, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or forms or terms of the Securities of the series have been established by
or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, in authenticating such Securities and accepting the additional
responsibilities under this
18
<PAGE>
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 801) shall be fully protected in conclusively
relying upon
(a) an Opinion of Counsel stating:
(1) that the form or forms of such Securities have been established in
conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(3) that authentication and delivery of such Securities and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(4) that the Company has the corporate power to issue, and has duly
authorized, such Securities; and
(5) that such Securities, when authenticated and delivered by a
Responsible Officer of 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 against the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or transfer and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles;
(b) an executed supplemental indenture, if any;
(c) a copy of a Board Resolution; and
(d) an Officers' Certificate;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of each form of
Securities of such series and that the opinions described in clauses (a)(2) and
(a)(5) above may state, respectively, that
(2) if the terms of such Securities are to be established pursuant to
a Company Order or pursuant to such procedures as may be specified from
time to time by a Company Order, all as contemplated by a Board Resolution
or action taken pursuant thereto, such terms will have been duly authorized
by the Company and established in conformity with the provisions of this
Indenture; and
(5) that such Securities, when executed by the Company, completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and issued and delivered by the Company and paid for, all in
accordance with any agreement of the
19
<PAGE>
Company relating to the offering, issuance and sale of such Securities,
will be duly issued under this Indenture and will constitute valid and
legally binding obligations of the Company, enforceable against the Company
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel, Company
Order and other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, in connection with the first authentication of a form of
Securities of such series and it shall not be necessary for the Company to
deliver such Opinion of Counsel and other documents (except as may be required
by the specified other procedures, if any, referred to above) at or prior to the
time of authentication of each Security of such series unless and until a
Responsible Officer of the Trustee receives notice that such Opinion of Counsel
or other documents have been superseded or revoked, and may assume compliance
with any conditions specified in such Opinion of Counsel (other than any
conditions to be performed by the Trustee). If such form or forms 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.
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 a Responsible Officer of the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, 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 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series, the Company
may execute, and upon Company Order a Responsible Officer of the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten 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. In the case of Securities of any series, such
temporary Securities may be in the form of Global Securities.
20
<PAGE>
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, subject to Section 305, for
definitive Securities of like tenor 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 a Responsible Officer of the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor and of any authorized
denominations. 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 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" of each series of Securities for the purpose of
registering Securities and transfers of Securities as herein provided at the
Corporate Trust Office.
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company in any Place of Payment for such series,
the Company shall execute and a Responsible Officer of 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 and bearing a
number not contemporaneously outstanding.
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 the office or agency of the Company in any Place of Payment for
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and a Responsible Officer of 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
such Holder's attorney duly authorized in writing.
21
<PAGE>
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 304, 1007 or 1205 not involving any transfer.
The Company may but 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
403 and ending at the close of business on the day of such mailing, (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 or (iii) to register the transfer of or exchange any certificated
Securities during a period beginning five days before the date of Maturity with
respect to such Security and ending on such date of Maturity.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 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 (i) such Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or the Company determines that the Depositary is unable to
continue as Depositary and the Company thereafter fails to appoint a successor
Depositary, (ii) the Company provides for such exchange or registration of
transfer pursuant to Section 301 of this Indenture, (iii) the Company executes
and delivers to the Trustee a Company Order that such Global Security shall be
so exchangeable and the transfer thereof so registrable, or (iv) there shall
have occurred and be continuing an Event of Default with respect to the
Securities of such series which entitles the Holders of such Securities to
accelerate the maturity thereof. Upon the occurrence in respect of any Global
Security of any series of any one or more of the conditions specified in clauses
(i), (ii), (iii) or (iv) of the preceding sentence or such other conditions as
may be specified as contemplated by Section 301 for such series, such Global
Security may be exchanged for Securities not bearing the legend specified in
Section 203 and registered in the names of such Persons as may be specified by
the Depositary (including Persons other than the Depositary or its nominees).
Notwithstanding any other provision of this Indenture, a Global Security
may not be transferred except as a whole by the Depositary for such Global
Security to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security, including a Global Security, is surrendered to
the Trustee or the Company, together with such security, bond or indemnity as
may be required by the Trustee or the Company to save each of them and any agent
of either of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security, including a new
Global Security if the mutilated Security was a Global Security, of the
22
<PAGE>
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, including
a Global Security if the destroyed, lost or stolen Security was a Global
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 upon its written request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security, including a Global Security if the destroyed,
lost or stolen Security was a Global 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), if any, 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. A new
Security shall have such legends as appeared on the old Security unless the
Company determines otherwise.
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 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 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 in the Security Register at the close of business on
the Regular Record Date for such Interest Payment Date.
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
23
<PAGE>
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities 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 5 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 such Holder's 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 308. 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 in the Security Register as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest
24
<PAGE>
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.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary (or its nominees) shall have any rights under this
Indenture with respect to such Global security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever. Notwithstanding the
foregoing, with respect to any Global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by a
Depositary as Holder of such Global Security, or impair, as between a Depositary
and the owners of beneficial interests in such Global Security, the operation of
customary practices governing the exercise of the rights of the Depositary (or
its nominees) as Holder of such Global Security.
Section 309. 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 canceled 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
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. The Trustee is hereby directed by the
Company to cancel the Securities held by the Trustee (subject to the record
retention requirements of the Exchange Act), and the Trustee shall return such
cancelled Securities to the Company.
Section 310. Computation of Interest.
Except as otherwise specified pursuant to Section 301 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 and no interest will accrue with
respect to the 31st day of any month.
Section 311. CUSIP Number.
The Company in issuing the Securities may use "CUSIP" numbers, and if it
does so, the Trustee shall use the applicable CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company will promptly notify the Trustee of any change in
any CUSIP number.
25
<PAGE>
ARTICLE IV.
REDEMPTION OF SECURITIES
Section 401. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section 301
with respect to any series of Securities, the Company shall have no mandatory
redemption or sinking fund obligations with respect to the Securities of any
series. Securities of any series which are redeemable before their Stated
Maturity in accordance with their terms as specifically established in
accordance with Section 301 shall be redeemable in accordance with their terms
and, except as otherwise provided by such terms, in accordance with this
Article.
Section 402. Notices to Trustee.
If the Company elects to redeem any Securities pursuant to any optional
redemption provisions established with respect to such series hereof, it shall
furnish to the Trustee, at least 40 days but not more than 60 days before the
Redemption Date, an Officers' Certificate setting forth (i) such Redemption
Date, (ii) the Redemption Price, (iii) if the Securities of such series have
different terms and less than all of the Securities of such series are to be
redeemed, the terms of the Securities to be redeemed and (iv) if less than all
the Securities of such series with identical terms are to be redeemed, the
principal amount of such 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 403. Selection of Securities to Be Redeemed.
If less than all of the Securities of like tenor of any series are to be
redeemed at any time, the Trustee shall select the particular Securities to be
redeemed among the Holders on a pro rata basis (and in such manner as complies
with applicable legal and stock exchange requirements, if any) or in such other
manner as the Trustee, in the exercise of its reasonable discretion, deems fair
and appropriate. In the event of partial redemption by lot, the particular
Securities to be redeemed from the Outstanding Securities of like tenor of such
series shall be selected, unless otherwise provided herein, not less than 30 nor
more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of like tenor of such series not previously called for
redemption.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. Securities and portions
of them selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Securities of a Holder are to be redeemed, the entire
outstanding amount of Securities held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions
26
<PAGE>
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
Section 404. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, notice
of redemption shall be delivered by first-class mail, postage prepaid, to each
Holder whose Securities are to be redeemed at each such Holder's address
appearing in the Security Register.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of like tenor of any
series are to be redeemed, the portion of the principal amount of any
Security of such series to be redeemed and that, after the redemption date
upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion shall be issued;
(4) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(5) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the Redemption Date;
(6) the paragraph of the Securities and/or Section of this Indenture
pursuant to which the Securities called for redemption are being redeemed;
and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number listed in such notice or printed on the Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 40 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security shall not affect the validity of the
proceeding for the redemption of any other Security.
27
<PAGE>
Section 405. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 404 hereof,
Securities called for redemption become due and payable on the redemption date
at the redemption price plus accrued and unpaid interest, if any, to such date.
Section 406. Deposit of Redemption Price.
At or before 10:00 a.m. Eastern Time on the 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 503) an amount of money, sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date. The Trustee or
the Paying Agent shall promptly return to the Company any money deposited with
the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the Redemption Price of (including any applicable premium), and
accrued interest on, all Securities to be redeemed.
Section 407. 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 301, 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 Regular Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 408. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be surrendered at a
Place of Payment for such series (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee 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. To the extent a series
of Securities represented by a Global Security is to be
28
<PAGE>
redeemed only in part, a notation of such redemption shall be made by the
Trustee in the schedule of exchanges on the Global Security.
ARTICLE V.
COVENANTS
Section 501. 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 the principal of (and premium,
if any) and interest on the Securities of such series in accordance with the
terms of such Securities and this Indenture. Principal of (premium, if any) and
interest on the Securities of any series shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary of the
Company, holds as of 10:00 a.m. Eastern Time on the due date money, deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due. Such Paying Agent
shall return to the Company, no later than one Business Day following the date
of payment, any money (including accrued interest) that exceeds such amount of
principal (premium, if any) and interest paid on the Securities of such series.
The Company shall, unless otherwise provided for as contemplated by Section
301, pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal of the Securities of any series at the rate
equal to 1% per annum in excess of the interest rate then applicable to such
series to the extent lawful. In addition, the Company shall pay interest on the
Securities of any series (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest (without regard to
any applicable grace period) at the same rate to the extent lawful.
Section 502. Maintenance of Office or Agency.
Unless otherwise provided for as contemplated by Section 301, the Company
shall maintain in the Borough of Manhattan, the City of New York, and in each
Place of Payment for any series of securities, an office or agency (which may be
an office of the Trustee or an affiliate of the Trustee, the Security Registrar
or co-registrar) where Securities of such 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 such series and this Indenture may
be served. The Company shall 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 such an 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
29
<PAGE>
no such designation or rescission shall in any manner relieve the Company of its
obligation, unless otherwise provided for as contemplated by Section 301, to
maintain an office or agency in the Borough of Manhattan, the City of New York
and in each Place of Payment for Securities of any series for such purposes. The
Company shall 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 503. 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 (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency in which such series of Securities is payable
sufficient to pay the principal (and premium, if any) or 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 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 (and premium, if
any) or interest on any Securities of such series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its 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:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of such series in trust for the
benefit of the Holders of such Securities until such sums shall be paid to
such Holders or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
such series; and
(3) during the continuance of any such default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
such series, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
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
30
<PAGE>
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 (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) 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 on Company Request.
Section 504. Commission Reports.
(i) So long as any of the Securities remain Outstanding, the Company shall
cause copies of all current, quarterly and annual financial reports on Forms
8-K, 10-Q and 10-K, respectively, and all proxy statements, which the Company is
then required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act to be filed with the Trustee and mailed to the Holders of such
series of Securities at their addresses appearing in the Security Register
maintained by the Security Registrar, in each case, within 15 days of filing
with the Commission. The Company shall also comply with the provisions of TIA
ss. 314(a).
(ii) If the Company is required to furnish annual or quarterly reports to
its stockholders pursuant to the Exchange Act, the Company shall cause any such
annual or quarterly report to its stockholders and any other financial report
furnished by it generally to its stockholders to be filed with the Trustee and
mailed to the Holders of each series of Securities Outstanding at their
addresses appearing in the Security Register maintained by the Security
Registrar, and such reports shall be in lieu of the delivery to such Holders of
the reports on Form 10-K and 10-Q described in clause (i) above if they contain
the information required by clause (i) above.
(iii) Delivery of such reports, information and documents to the Trustee is
for information purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
31
<PAGE>
Section 505. Compliance Certificate.
(i) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to his or her knowledge each entity has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto) and that to his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Securities of any series is prohibited
or if such event has occurred, a description of the event and what action each
is taking or proposes to take with respect thereto.
(ii) The Company shall, so long as any of the Securities of any series are
Outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of (a) any Default or Event of Default with respect to such series of Securities
or (b) any event of default under any other mortgage, indenture or instrument,
an Officers' Certificate specifying such Default, Event of Default or event of
default and what action the Company is taking or proposes to take with respect
thereto.
Section 506. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments and governmental levies
except (i) as contested in good faith by appropriate proceedings and with
respect to which appropriate reserves have been taken, if required, in
accordance with GAAP or (ii) where the failure to effect such payment is not
adverse in any material respect to the Holders.
Section 507. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that 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 shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
32
<PAGE>
Section 508. Corporate Existence.
Subject to Article 6 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and (ii) the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders.
Section 509. Limitation on Liens.
The Company will not, and will not permit any Restricted Subsidiary to,
create, assume, incur or suffer to exist:
(i) any Lien upon any stock or Indebtedness of any Restricted
Subsidiary, whether owned on the date hereof or thereafter acquired, to
secure any Indebtedness of the Company or any other person (other than the
Securities), or
(ii) any Lien upon any Principal Property, whether owned or leased on
the date hereof, or thereafter acquired, to secure any Indebtedness of the
Company or any other person (other than the Securities),
without in any such case making effective provision to secure all the
outstanding Securities equally and ratably with such Indebtedness, except
Permitted Liens.
Notwithstanding the foregoing, the Company may, and may permit any
Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien
upon any stock or Indebtedness of any Restricted Subsidiary or upon any
Principal Property without equally and ratably securing the Securities if
the aggregate amount of all Indebtedness then outstanding secured by such
Lien and all similar Liens does not exceed 10% of the Consolidated Net
Worth of the Company as of the most recent quarterly consolidated balance
sheet of the Company prepared in accordance with GAAP; provided, that
Indebtedness secured by Permitted Liens shall not be included in the amount
of such secured Indebtedness.
Section 510. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to
time.
33
<PAGE>
ARTICLE VI.
SUCCESSORS
Section 601. Limitations On Mergers, Consolidations or Sales of Assets.
The Company may not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another Person unless:
(i) the Company is the surviving Person or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or
to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the Securities
and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event of
Default exists; and
(iv) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the
Company immediately preceding the transaction.
Section 602. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 601 hereof, the successor corporation formed
by such consolidation or into or with which the Company is merged or to which
such sale, assignment, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for (so that from and after the date of
such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor corporation), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person has been named as the Company, herein.
34
<PAGE>
ARTICLE VII.
DEFAULTS AND REMEDIES
Section 701. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, and unless otherwise provided with respect to Securities of any series
pursuant to Section 301, 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):
(i) a default for 30 days in the payment when due of interest on any
Security of such series;
(ii) a default in payment when due of principal of or premium, if any, on
any Security of such series at Maturity, upon redemption or otherwise;
(iii) a failure by the Company to deposit any "mandatory sinking fund
payment" (as defined in Section 1101 hereof), when and as due, in respect of the
Securities of such series;
(iv) a default in the performance or breach of Article 6;
(v) failure by the Company for 60 days after notice to comply with any of
its other agreements in this Indenture or any Security of such series;
(vi) the Company or any Subsidiary of the Company pursuant to or within the
meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case in which it is the debtor,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) admits in writing its inability generally to pay its debts as the
same become due;
(vii) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
35
<PAGE>
(a) is for relief against the Company or any Subsidiary of the
Company in an involuntary case in which it is the debtor,
(b) appoints a Custodian of the Company or any Subsidiary thereof
or for all or substantially all of the property of the Company or any
Subsidiary thereof, or
(c) orders the liquidation of the Company or any Subsidiary of
the Company,
and the order or decree remains unstayed and in effect for 60 days; and
(viii) any other Event of Default provided with respect to Securities of
such series pursuant to Section 301.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under clause (v) is not an Event of Default with respect to any
series of Securities until the Trustee notifies the Company in writing, or the
Holders of at least 25% in principal amount of the then Outstanding Securities
of such series notify the Company and the Trustee in writing, of the Default and
the Company does not cure the Default within 60 days after receipt of such
notice. The written notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default."
In the case of any Event of Default with respect to the Securities of any
series pursuant to the provisions of this Section 701 occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
or any of its Subsidiaries the primary purpose of which was to allow the Company
to avoid payment of the premium, if any, that the Company would have had to pay
with respect to the Securities of such series if the Company then had elected to
redeem such Securities pursuant to the optional redemption provisions, if any,
established in accordance with this Indenture, an equivalent premium shall also
become and be immediately due and payable if such Securities are repaid to the
extent permitted by law, anything in this Indenture or in the Securities of such
series to the contrary notwithstanding.
Section 702. Acceleration.
If an Event of Default with respect to the Outstanding Securities of any
series (other than an Event of Default specified in clauses (viii) and (ix) of
Section 701) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series by written notice to the Company and the
Trustee, may declare the unpaid principal of (or, if any of the Securities of
such series are Original Issue Discount Securities, such lesser portion of the
principal amount of such Securities as may be specified in the terms thereof),
premium, if any, and any accrued and unpaid
36
<PAGE>
interest on all the Securities of that series to be due and payable. Upon such
declaration the principal (or specified portion thereof), premium, if any, and
interest shall be due and payable immediately. If an Event of Default specified
in clause (viii) or (ix) of Section 701 occurs with respect to the Company or
any Subsidiary thereof such an amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the Outstanding
Securities of such series by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to such
series (except nonpayment of principal or interest that has become due solely
because of the acceleration) have been cured or waived.
Section 703. Other Remedies.
If an Event of Default with respect to the Outstanding Securities of any
series occurs and is continuing, the Trustee may pursue any available remedy
(under this Indenture or otherwise) to collect the payment of principal,
premium, if any, or interest on the Securities of such series or to enforce the
performance of any provision of such Securities or this Indenture.
The Trustee may maintain a proceeding at the expense of the Company with
respect to the Outstanding Securities of any series even if it does not possess
any of the Securities of such series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of such Securities
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by law.
Section 704. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of any series by written notice to the Trustee may waive
an existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a continuing Default or Event of Default in
the payment of the principal of, premium, if any, or interest on any Security of
such series held by a nonconsenting Holder (other than a rescission of
acceleration of the Securities of such series by the Holders of at least a
majority in aggregate principal amount of the Securities of such series and a
waiver of the payment default resulting from such acceleration). Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to the Securities of such series 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 705. Control by Majority.
Holders of a majority in principal amount of the Outstanding Securities of
any series may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee with respect to such series or
exercising any trust or power conferred on the Trustee with respect to such
series. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly prejudicial
to
37
<PAGE>
the rights of other Holders of Securities of such series or that may involve the
Trustee in personal liability. The Trustee may take any other action which it
deems proper which is not inconsistent with any such direction.
Section 706. 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:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to the Securities of such series;
(ii) the Holders of at least 25% in principal amount of the
Outstanding Securities of such series make a written request to the Trustee
to pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and the provision of indemnity; and
(v) during such 60-day period the Holders of a majority in principal
amount of the Outstanding Securities of such series do not give the Trustee
a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
Section 707. Rights of Holders to Receive Payment.
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 premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date, or, in the case
of a repurchase right at the option of the Holder, if any, on the Repurchase
Date specified pursuant to Section 301) 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 708. Collection Suit by Trustee.
If an Event of Default with respect to the Securities of any series
specified in Section 701(i) or (ii) occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Securities of
such series and interest on overdue principal and, to the extent lawful,
interest, premium and such
38
<PAGE>
further amount as shall be sufficient to cover the costs and expenses of
collection, including the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 709. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 make such payments directly
to the Holders, to pay to the Trustee any amount due to it for the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 808 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 808 hereof out of the estate in any such proceeding, shall be denied for
any reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties which the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained 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
of any series 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.
Section 710. Priorities.
If the Trustee collects any money with respect to the Securities of any
series pursuant to this Article, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 808, including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of the Securities of such series for amounts due and
unpaid on the Securities of such series for principal, premium, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities of such series for principal, premium,
if any and interest, respectively;
Third: without duplication, to Holders of the Securities of such series for
any other principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness owing to such Holders under this Indenture or the
Securities of such series; and
39
<PAGE>
Fourth: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders.
Section 711. 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 or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 707, or a suit by Holders of more than 10% in principal amount of the
Outstanding Securities of the affected series.
ARTICLE VIII.
TRUSTEE
Section 801. Duties of Trustee.
(i) With respect to the Securities of any series, if an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(ii) With respect to the Securities of any series, except during the
continuance of an Event of Default actually known to a Responsible Officer of
the Trustee:
(a) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee need
perform only those duties that are specifically set forth in this Indenture
or the TIA and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee, and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy or mathematical calculations or other facts stated
therein).
(iii) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
40
<PAGE>
(a) this paragraph does not limit the effect of paragraph (ii) of this
Section;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 705 hereof.
(iv) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (i),
(ii), and (iii) of this Section.
(v) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(vi) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 802. Rights of Trustee.
(i) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in any such document.
(ii) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(iii) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(iv) The Trustee may act through its attorneys and agents and shall not be
responsible nor liable for the misconduct or negligence of any agent appointed
with due care.
41
<PAGE>
(v) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
Section 803. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or any Affiliate
of the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 812 and 813 hereof.
Section 804. Trustee's Disclaimer.
The Trustee and the Authenticating Agent shall not be responsible for and
make no representation as to the validity or adequacy of this Indenture or the
Securities of any series, nor shall the Trustee or the Authenticating Agent be
accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, nor shall it or the Authenticating Agent be responsible for the
use or application of any money received by any Paying Agent other than the
Trustee, nor shall it be responsible for any statement or recital herein or any
statement in the Securities of any series or any other document in connection
with the sale of the Securities or pursuant to this Indenture other than its
certificate of authentication.
Section 805. Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if it is actually known to a Responsible
Officer of the Trustee, the Trustee shall mail to Holders of such Securities a
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment on any Security of any
series or in the payment of any sinking fund installment with respect to the
Securities of such series, the Trustee may withhold the notice if and so long as
a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of Securities of such
series.
Section 806. Preservation of Information.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of such series of Securities
received by the Trustee in its capacity as Security Registrar.
Section 807. Reports by Trustee to Holders.
Within 60 days after May 15 of each year commencing with the later of May
15, 1999 or the first May 15 after the first issuance of Securities pursuant to
this Indenture, the Trustee shall mail to the Holders of Securities of all
series a brief report dated as of such
42
<PAGE>
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b). The Trustee shall also transmit by mail all reports as required by TIA
ss. 313(c).
A copy of each report at the time of its mailing to the Holders shall be
mailed to the Company and filed with the Commission and each stock exchange on
which the Securities are listed. The Company shall promptly notify the Trustee
when the Securities are listed on any stock exchange or delisted therefrom.
Section 808. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such compensation
for its acceptance of this Indenture and services hereunder mutually
satisfactory to the Company and Trustee. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall fully indemnify the Trustee against any and all losses,
liabilities, claims, damages or expenses (including taxes other than taxes based
on the income of the Trustee) incurred by it arising out of or in connection
with the acceptance of its duties and the administration of the trusts under
this Indenture, except as set forth below. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel of its own selection and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The obligations of the Company under this Section 808 shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through its own negligence or willful
misconduct.
To secure the Company's payment obligations in this Section 808, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on the Securities of any series. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 701(viii) or (ix) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
43
<PAGE>
Section 809. 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 810.
(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 specifying
its intention to resign, the applicable series affected by such resignation, the
reason therefor and the date upon which such resignation shall become effective.
Notwithstanding the foregoing, unless the reason for such resignation is a
conflict pursuant to TIA ss. 310(b) as provided in Section 812 hereof, the
Trustee must resign with respect to all Securities if the Trustee resigns with
respect to any series of Securities. If the instrument of acceptance by a
successor Trustee required by Section 810 shall not have been delivered to the
Trustee within 60 days after the giving of such notice of resignation, the
resigning Trustee may petition at the expense of the Company 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 TIA ss. 310(b) 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 812 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 any one or more series of Securities or all Securities,
or (ii) subject to Section 711, 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 such series of 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
44
<PAGE>
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).
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 810, 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 810, 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 by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. 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 810. 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
45
<PAGE>
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.
Whenever there is a successor Trustee with respect to one or more (but less than
all) series of securities issued pursuant to this Indenture, the terms
"Indenture" and "Securities" shall have the meanings specified in the provisos
to the respective definitions of those terms in Section 101 which contemplate
such situation.
(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 811. 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; in case
any of the Securities shall not have been authenticated by the Trustee then in
office, any successor by merger, conversion or consolidation to such Trustee may
authenticate such Securities either in the name of such predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities
46
<PAGE>
in the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
Section 812. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trustee power, shall be subject to supervision or examination by Federal or
state authority and shall have a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b).
Section 813. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
Section 814. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee, with
the concurrence of the Company, may appoint an Authenticating Agent or Agents
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, 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, State or District of Columbia
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
47
<PAGE>
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 anytime 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.
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 reimbursement for such payments subject to Section 808.
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 alternate certificate
of authentication in the following form:
This is one of the Securities of the series designated herein and issued
pursuant to the within-mentioned Indenture.
Dated:
-----------------
THE BANK OF NEW YORK, as Trustee
By
------------------------------
Authorized Signatory
THE BANK OF NEW YORK, as
Authenticating Agent
By
------------------------------
Authorized Signatory
48
<PAGE>
Section 815. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date of
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE IX.
DISCHARGE OF INDENTURE
Section 901. Defeasance and Discharge of this Indenture and the Securities.
The Company may, at the option of its Board of Directors evidenced by a
Board Resolution set forth in an Officers' Certificate, at any time, with
respect to the Securities of any series, elect to have either Section 902 or 903
be applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article 9.
Section 902. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 901 of the option applicable to
this Section 902, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of any series on the date
the conditions set forth below are satisfied with respect to such series
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities of such series, which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
905 and the other Sections of this Indenture referred to in clauses (i) and (ii)
of this Section 902, and to have satisfied all its other obligations under the
Securities of such series and this Indenture as it relates to such series (and
the Trustee, on demand of and 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: (i) the rights of
Holders of Outstanding Securities of such series to receive solely from the
trust fund described in Section 904, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Securities when such payments are due, (ii) the Company's obligations
with respect to such Securities under Sections 305, 306 and 502, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, the Trustee's rights under Section 808, and the
Company's obligations in connection therewith and (iv) this Article 9. Subject
to compliance with this Article 9, the Company may exercise its option under
this Section 902
49
<PAGE>
notwithstanding the prior exercise of its option under Section 903 with respect
to the Securities of such series.
Section 903. Covenant Defeasance.
Unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 301,
upon the Company's exercise under Section 901 of the option applicable to this
Section 903, the Company shall be released from its obligations under the
covenants contained in Sections 504, 505, 506 and 509, Article 6 and Section
301(12) with respect to the Outstanding Securities of any series on and after
the date the conditions set forth below are satisfied with respect to such
series (hereinafter, "Covenant Defeasance"), and the Securities of such series
shall thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders of such Securities (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the Outstanding Securities of any 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 covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
with respect to such series of Securities under Section 701(iv) or (v) but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby. In addition, upon the Company's exercise under
Section 901 of the option applicable to this Section 903, subject to the
satisfaction of the conditions set forth in Section 904, any failure or omission
to comply with such obligations shall not constitute a Default or Event of
Default with respect to the Securities.
Section 904. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to application of either Section 902
or Section 903 to the Outstanding Securities of any series:
(i) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 812 who shall agree to comply with the provisions of this
Article 9 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 the Securities of such
series, (a) cash in U.S. Dollars in an amount, or (b) non-callable
Government Securities 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, cash in U.S.
Dollars in an amount, or (c) a combination thereof, in such amounts, as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge (A) the
principal of, premium, if any, and interest on the Outstanding
50
<PAGE>
Securities of such series on the Stated Maturity or on the applicable
Redemption Date, as the case may be, of such principal or installment of
principal, premium, if any, or interest on the day on which such payments
are due and payable and (B) any mandatory sinking fund payments or
analogous payments applicable to the Securities of such series on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and such Securities; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
non-callable Government Securities to said payments with respect to the
Securities of such series.
(ii) In the case of an election under Section 902, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably satisfactory to the Trustee confirming that (a) the Company has
received from, or there has been published by, the Internal Revenue Service
a ruling or (b) since the date hereof, 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 Legal 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 Legal
Defeasance has not occurred.
(iii) In the case of an election under Section 903, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States 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 in the same amount, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred.
(iv) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or, in so far as Subsection 701(viii) or 701(ix) is concerned, at
any time in the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(v) Such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which the Company is bound.
(vi) In the case of an election under either Section 902 or 903, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable Bankruptcy Law.
(vii) In the case of an election under either Section 902 or 903, the
Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election under
Section 902 or 903 was not made by the
51
<PAGE>
Company with the intent of preferring the Holders of the series of
Securities to be defeased over other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding creditors of the
Company or others.
(viii) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States, each stating
that all conditions precedent provided for relating to either the Legal
Defeasance under Section 902 or the Covenant Defeasance under Section 903
(as the case may be) have been complied with as contemplated by this
Section 904.
Section 905. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 906, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 905, the "Trustee") pursuant
to Section 904 in respect of the Outstanding Securities of any 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 (including the Company acting as Paying Agent) as the Trustee
may determine, to the Holders of the Securities of such series of all sums due
and to become due thereon in respect of principal, 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 cash or non-callable Government
Securities deposited pursuant to Section 904 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article 9 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the Company's request
any money or non-callable Government Securities held by it as provided in
Section 904 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 904(i)), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 906. Repayment to Company.
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, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its 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
52
<PAGE>
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 the New York
Times and The Wall Street Journal (national edition), 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 notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 907. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Dollars or
non-callable Government Securities in accordance with Section 902 or 903, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities of any series
to be defeased shall be revived and reinstated as though no deposit had occurred
pursuant to Section 902 or 903 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 902 or 903, as the
case may be; provided, however, that, if the Company makes any payment of
principal of, 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 Security to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE X.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 1001. Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may amend this Indenture or enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(i) 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
(ii) 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 one or
more specified series) or to surrender any right or power herein conferred
upon the Company; or
(iii) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
53
<PAGE>
(iv) 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 of any series in certificated or uncertificated
form; or
(v) 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
(vi) to secure the Securities of any series; or
(vii) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(viii) 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 810; or
(ix) to cure any ambiguity or defect in or to correct or supplement
any provision herein which may be inconsistent with any other provision in
this Indenture or any Security of any series, or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect; or
(x) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA.
Section 1002. With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities of all series at the time Outstanding
affected by such amendment or supplemental indenture (voting as one 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 amend this Indenture or
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 such series under this Indenture; provided, however,
that no such amendment or supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby,
(i) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any such affected Security, or reduce the
principal amount thereof or the
54
<PAGE>
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 702, or change any
Place of Payment where, or the coin or currency in which, any such Security
or any premium or the 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 or repayment, on or
after the Redemption Date or any repayment date), or
(ii) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
modifications or amendments to the Indenture with respect to such series or
to the terms and conditions of such series or to approve a supplemental
indenture with respect to such series, or the consent of whose Holders is
required for any waiver with respect to such series of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture, or
(iii) modify any of the provisions of Sections 704 or 707 or this
Section 1002 or Article 8, 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 1002 and Article
8, or the deletion of this proviso, in accordance with the requirements of
Sections 810(b) and 1001(viii).
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 1003. 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 801) shall be fully protected in conclusively 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.
55
<PAGE>
Section 1004. 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 of the series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby to the extent
provided therein.
Section 1005. Compliance with TIA.
Every amendment or supplement to this Indenture or the Securities of any
series shall be set forth in a supplemental indenture that complies with the TIA
as then in effect.
Section 1006. Revocation and Effect of Consents.
Until an amendment, supplemental waiver or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. A supplemental indenture, amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder of the
series of Securities to which such amendment, supplemental waiver or waiver
relates.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders of the Securities of any series must consent to such
amendment or waiver. If the Company fixes a record date, the record date shall
be fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders furnished to the Trustee
prior to such solicitation or (ii) such other date as the Company shall
designate.
Section 1007. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article shall bear a notation in a 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 Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by a Responsible Officer of the Trustee in exchange for Outstanding
Securities of such series.
Section 1008. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 1002, the Company
shall give notice thereof to the Holders of each Outstanding Security so
affected, pursuant to Section 108, setting forth in general terms the substance
of such supplemental indenture.
56
<PAGE>
ARTICLE XI.
SINKING FUNDS
Section 1101. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section 301
with respect to any series of Securities, the Company shall have no sinking fund
obligations with respect to Securities of any series. The sinking fund
obligations as to any series of Securities for which such obligations exist
shall be as provided by the terms of such series of Securities as specifically
established in accordance with Section 301 and, except as otherwise provided by
such terms, as provided in this Article.
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 1102. 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 1102. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of like tenor of a
series (other than any previously called for redemption) and (2) may apply as a
credit Securities of like tenor 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 like tenor 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 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. Such Securities shall be first applied to
the sinking fund payment next due and any excess shall be applied to the
following sinking fund payments in the order they are due.
Section 1103. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of like tenor of a series, the Company shall deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, 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 like tenor of that series pursuant to Section 1102 and, at the
time of delivery of such Officers' Certificate, will also deliver to the Trustee
any Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 403 and
cause notice of the redemption thereof
57
<PAGE>
to be given in the name of and at the expense of the Company in the manner
provided in Section 404. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 407 and 408.
ARTICLE XII.
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
Section 1201. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section 301
with respect to any series of Securities, the Company shall have no repurchase
obligations with respect to Securities of any series. Securities of any series
which are repurchasable before their Stated Maturity at the option of the
Holders in accordance with their terms as specifically established in accordance
with Section 301 shall be repurchasable in accordance with their terms and,
except as otherwise provided by such terms, in accordance with this Article.
Section 1202. Notice of Repurchase Date.
Notice of any Repurchase Date with respect to Securities of any series
shall, unless otherwise specified by the terms of such Securities, be given by
the Company not less than 45 nor more than 60 days prior to such Repurchase Date
to each Holder of Securities of such series subject to repurchase in accordance
with Section 108.
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
(2) the Repurchase Price;
(3) the place or places where such Securities are to be surrendered
for payment of the Repurchase Price and the date by which such Securities
must be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right;
(5) that exercise of the option to elect repurchase is irrevocable;
and
(6) the CUSIP numbers.
No failure of the Company to give the foregoing notice shall limit any Holder's
right to exercise a repurchase right.
58
<PAGE>
Section 1203. Deposit of Repurchase Price.
On or prior to the Repurchase 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 503) the amounts
required to be deposited in accordance with the applicable repurchase right
provisions or, if no such amount is specified, an amount of money sufficient to
pay the Repurchase Price of and (unless the Repurchase Date shall be an Interest
Payment Date) accrued interest, if any, on all of the Securities of such series
which are to be repurchased on that date.
Section 1204. Securities Payable on Repurchase Date.
The form of option to elect repurchase having been delivered as specified
in the form of Security for such series as provided in Article 2, the Securities
of such series so to be repurchased shall, on the Repurchase Date, become due
and payable at the Repurchase Price applicable thereto and from and after such
date (unless the Company shall default in the payment of the Repurchase Price
and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for repurchase in accordance with said notice,
such Security shall be paid by the Company at the Repurchase Price together with
accrued interest to the Repurchase Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to such Repurchase 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 Regular
and Special Record Dates according to their terms and the provisions of Section
307.
If the amount deposited in accordance with Section 1203 is insufficient to
pay the Repurchase Price of all of the Securities as to which the option to
elect repurchase exists under this Indenture and has been exercised, the Trustee
shall select the particular Securities to be repurchased on a pro rata basis
among all such Holders of all series of Securities having such repurchase right
and so exercising the option to elect repurchase (and in such manner as complies
with applicable legal and stock exchange requirements, if any). The Trustee
shall promptly notify the Company in writing of the Securities selected for
repurchase and the principal amount thereof. Securities and portions of them
selected shall be in amounts of $1,000 or whole multiples of $1,000. Except as
provided in this paragraph, provisions of this Indenture that apply to
Securities to be repurchased also apply to portions of Securities to be
repurchased.
If any such Security shall not be paid upon surrender thereof for
repurchase, the principal (and premium, if any) shall, until paid, bear interest
from the Repurchase Date at the rate prescribed therefor in such Security.
Section 1205. Securities Repurchased in Part.
Any Security which by its terms may be repurchased in part at the option of
the Holder and which is to be repurchased only in part, or which is repurchased
only in part in accordance with Section 1204, shall be surrendered at any office
or agency of the Company designated for that purpose pursuant to Section 502
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the
59
<PAGE>
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and a
Responsible Officer of the Trustee 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
unrepurchased portion of the principal of the Security so surrendered. To the
extent a series of Securities represented by a Global Security is to be
repurchased in part only, a notation of such redemption shall be made by the
Trustee in the schedule of exchanges on the Global Security.
ARTICLE XIII.
MISCELLANEOUS
Section 1301. TIA Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 1302. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Authenticating Agent, the Security Registrar or the Paying Agent
may make reasonable rules and set reasonable requirements for their respective
functions.
Section 1303. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or Minneapolis, Minnesota or at a place of
payment are authorized or obligated by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 1304. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the Company,
as such, shall have any liability for any obligations of the Company under the
Securities, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of the Securities by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities.
Section 1305. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy shall be sufficient to prove this Indenture.
60
<PAGE>
Section 1306. Governing Law.
This Indenture shall be governed by and interpreted under the laws of the
State of New York, and any dispute arising out of, connected with, related to,
or incidental to the relationship established between the Company, the Trustee
and the Holders in connection with this Indenture, and whether arising in
contract, tort, equity or otherwise, shall be resolved in accordance with the
internal laws (as opposed to the conflicts of laws provisions) and decisions of
the State of New York.
Section 1307. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 1308. Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 1309. Severability.
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 1310. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 1311. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
61
<PAGE>
*****
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and the respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
UNITED HEALTHCARE CORPORATION
---------------------------------
Allan J. Weiss
Vice President and Treasurer
Attest:
- ------------------------------
David J. Lubben
Secretary
[SEAL]
THE BANK OF NEW YORK, as Trustee
By
-------------------------------
Its
------------------------------
62
<PAGE>
Exhibit 4.2
- --------------------------------------------------------------------------------
UNITED HEALTHCARE CORPORATION
to
THE BANK OF NEW YORK
as Trustee
=======================
SUBORDINATED DEBT SECURITIES
=======================
INDENTURE
Dated as of November 15, 1998
- --------------------------------------------------------------------------------
<PAGE>
UNITED HEALTHCARE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of November 15, 1998
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
310 (a)(1) ..................................... 812
(a)(2) ..................................... 812
(a)(3) ..................................... N.A.
(a)(4) ..................................... N.A.
(a)(5) ..................................... 812
(b) ..................................... 809; 812
(c) ..................................... N.A.
311 (a) ..................................... 813
(b) ..................................... 813
(c) ..................................... N.A.
312 (a) ..................................... 806
(b) ..................................... 109
(c) ..................................... 109
313 (a) ..................................... 807
(b)(1) ..................................... N.A.
(b)(2) ..................................... 807
(c) ..................................... 807
(d) ..................................... 807
314 (a) ..................................... 504
(b) ..................................... N.A.
(c)(1) ..................................... 104
(c)(2) ..................................... 104
(c)(3) ..................................... N.A.
(d) ..................................... N.A.
(e) ..................................... 104
(f) ..................................... N.A.
315 (a) ..................................... 801
(b) ..................................... 805
(c) ..................................... 801
(d) ..................................... 801
- i -
<PAGE>
(e) ..................................... 711
316 (a) (last sentence) ..................................... 101
(a)(1)(A) ..................................... 705
(a)(1)(B) ..................................... 704
(a)(2) ..................................... N.A.
(b) ..................................... 707
(c) ..................................... 106
317(a)(1) ..................................... 708
(a)(2) ..................................... 709
(b) ..................................... 503
318 (a) ..................................... 1401
(b) ..................................... N.A.
(c) ..................................... 1401
N.A. means not applicable.
- --------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
- ii -
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 101. Definitions...................................................8
Section 102. Other Definitions.............................................8
Section 103. Incorporation by Reference of TIA.............................9
Section 104. Compliance Certificates and Opinions.........................10
Section 105. Form of Documents Delivered to Trustee.......................10
Section 106. Acts of Holders..............................................12
Section 107. Notices, Etc., to Trustee and Company........................13
Section 108. Notice to Holders; Waiver....................................13
Section 109. Communication by Holders with Other Holders..................13
Section 110. Rules of Construction........................................14
ARTICLE II. SECURITY FORMS
Section 201. Forms Generally..............................................14
Section 202. Form of Trustee's Certificate of Authentication..............15
Section 203. Form of Legend for Global Securities.........................15
ARTICLE III. THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.........................18
Section 302. Denominations................................................18
Section 303. Execution, Authentication, Delivery and Dating...............21
Section 304. Temporary Securities.........................................21
Section 305. Registration, Registration of Transfer and Exchange..........23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.............24
Section 307. Payment of Interest; Interest Rights Preserved...............25
Section 308. Persons Deemed Owners........................................26
Section 309. Cancellation.................................................26
Section 310. Computation of Interest......................................26
Section 311. CUSIP Number.................................................27
ARTICLE IV. REDEMPTION OF SECURITIES
Section 401. Applicability of Article.....................................27
Section 402. Notices to Trustee...........................................27
Section 403. Selection of Securities to Be Redeemed.......................28
Section 404. Notice of Redemption.........................................29
Section 405. Effect of Notice of Redemption...............................29
Section 406. Deposit of Redemption Price..................................29
Section 407. Securities Payable on Redemption Date........................29
Section 408. Securities Redeemed in Part..................................30
- iii -
<PAGE>
ARTICLE V. COVENANTS
Section 501. Payment of Principal, Premium and Interest...................30
Section 502. Maintenance of Office or Agency..............................31
Section 503. Money for Securities Payments to Be Held in Trust............32
Section 504. Commission Reports...........................................33
Section 505. Compliance Certificate.......................................33
Section 506. Taxes........................................................34
Section 507. Stay, Extension and Usury Laws...............................34
Section 508. Corporate Existence..........................................34
Section 509. Calculation of Original Issue Discount.......................35
ARTICLE VI. SUCCESSORS
Section 601. Limitations On Mergers, Consolidations or Sales of Assets....35
Section 602. Successor Corporation Substituted............................36
ARTICLE VII. DEFAULTS AND REMEDIES
Section 701. Events of Default............................................38
Section 702. Acceleration.................................................38
Section 703. Other Remedies...............................................38
Section 704. Waiver of Past Defaults. ....................................39
Section 705. Control by Majority. ........................................39
Section 706. Limitation on Suits. ........................................40
Section 707. Rights of Holders to Receive Payment.........................40
Section 708. Collection Suit by Trustee...................................40
Section 709. Trustee May File Proofs of Claim. ...........................41
Section 710. Priorities. .................................................41
Section 711. Undertaking for Costs........................................42
ARTICLE VIII. TRUSTEE
Section 801. Duties of Trustee. ..........................................43
Section 802. Rights of Trustee. ..........................................43
Section 803. Individual Rights of Trustee.................................44
Section 804. Trustee's Disclaimer.........................................44
Section 805. Notice of Defaults. .........................................44
Section 806. Preservation of Information..................................44
Section 807. Reports by Trustee to Holders................................45
Section 808. Compensation and Indemnity...................................45
Section 809. Resignation and Removal; Appointment of Successor............47
Section 810. Acceptance of Appointment by Successor.......................48
Section 811. Merger, Conversion, Consolidation or Succession to Business..49
Section 812. Eligibility; Disqualification................................49
Section 813. Preferential Collection of Claims Against Company............49
Section 814. Appointment of Authenticating Agent..........................51
Section 815. Trustee's Application for Instructions from the Company......51
- iv -
<PAGE>
ARTICLE IX. DISCHARGE OF INDENTURE
Section 901. Defeasance and Discharge of this Indenture and the
Securities...................................................52
Section 902. Legal Defeasance and Discharge...............................52
Section 903. Covenant Defeasance..........................................53
Section 904. Conditions to Legal or Covenant Defeasance...................54
Section 905. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions........................55
Section 906. Repayment to Company.........................................55
Section 907. Reinstatement................................................56
ARTICLE X. AMENDMENT, SUPPLEMENT AND WAIVER
Section 1001. Without Consent of Holders...................................57
Section 1002. With Consent of Holders......................................58
Section 1003. Execution of Supplemental Indentures.........................58
Section 1004. Effect of Supplemental Indentures............................59
Section 1005. Compliance with TIA..........................................59
Section 1006. Revocation and Effect of Consents............................59
Section 1007. Reference in Securities to Supplemental Indentures...........59
Section 1008. Notice of Supplemental Indentures............................60
ARTICLE XI. SINKING FUNDS
Section 1101. Applicability of Article.....................................60
Section 1102. Satisfaction of Sinking Fund Payments with Securities........60
Section 1103. Redemption of Securities for Sinking Fund....................61
ARTICLE XII. REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
Section 1201. Applicability of Article.....................................61
Section 1202. Notice of Repurchase Date....................................62
Section 1203. Deposit of Repurchase Price..................................62
Section 1204. Securities Payable on Repurchase Date........................63
Section 1205. Securities Repurchased in Part...............................63
ARTICLE XIII. SUBORDINATION
Section 1301. Agreement to Subordinate.....................................63
Section 1302. Distribution on Dissolution, Liquidation and
Reorganization...............................................65
Section 1303. No Payment When Senior Debt in Default.......................65
Section 1304. Payment to Holders of Senior Debt............................66
Section 1305. Subrogation..................................................66
Section 1306. Payment on Securities Permitted..............................66
Section 1307. Authorization of Holders to Trustee to Effect Subordination..67
Section 1308. No Waiver of Subordination Provisions........................67
Section 1309. Trustee as Holder of Senior Debt.............................67
Section 1310. Notices to Trustee...........................................68
- v -
<PAGE>
Section 1311. No Fiduciary Duty by Trustee to Holders of Senior Debt.......68
Section 1312. Paying Agent Treated as Trustee..............................68
ARTICLE XIV. MISCELLANEOUS
Section 1401. TIA Controls.................................................69
Section 1402. Rules by Trustee and Agents..................................69
Section 1403. Legal Holidays...............................................69
Section 1404. No Personal Liability of Directors, Officers, Employees and
Stockholders.................................................69
Section 1405. Duplicate Originals..........................................69
Section 1406. Governing Law................................................69
Section 1407. No Adverse Interpretation of Other Agreements................70
Section 1408. Successors...................................................70
Section 1409. Severability.................................................70
Section 1410. Counterpart Originals........................................70
Section 1411. Table of Contents, Headings, etc.............................70
- vi -
<PAGE>
INDENTURE, dated as of November 15, 1998 between UNITED HEALTHCARE
CORPORATION, a corporation duly organized and existing under the laws of the
State of Minnesota (herein called the "Company"), having its principal office at
300 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343, and THE BANK
OF NEW YORK, a New York banking corporation, as Trustee (herein called the
"Trustee"), having its principal corporate trust office at 101 Barclay Street,
Floor 21 West, New York, New York 10286.
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 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 covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof (including holders from time to time of the Securities of any series
held through a Holder which is a Depositary (as defined herein)), as follows:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 101. Definitions.
"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 purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Authenticating Agent, Security Registrar, Paying
Agent or co- registrar.
<PAGE>
"Board of Directors" means the Board of Directors of the Company or any
duly authorized (generally or in any particular respect) committee appointed by
that board.
"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. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution (including establishment of any series of
the Securities and the forms and terms thereof), such action may be taken by any
committee, officer or employee of the Company authorized to take such action
(generally or in any particular respect) by a Board Resolution.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" means (i) in the case of a corporation, corporate stock
without limitation, common stock and preferred stock, (ii) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, (iii) in
the case of a partnership, partnership interests (whether general or limited)
and (iv) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, as obligor under the Securities, unless and until
a successor replaces the Company in accordance with Article 6 hereof and
thereafter means such successor.
"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 President,
its Chief Executive Officer, its Chief Operating Officer, its Chief Financial
Officer, a Vice President, its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, or by any other officer of the Company authorized to
sign by Board Resolution, and delivered to the Trustee.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date, plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock, less (x) all write-ups (other than
write-ups resulting from
- 2 -
<PAGE>
foreign currency translations and write-ups of tangible assets of a going
concern business made within 12 months after the acquisition of such business)
subsequent to the date of this Indenture in the book value of any asset owned by
such Person or a consolidated Subsidiary of such Person, and (y) all unamortized
debt discount and expense and unamortized deferred charges as of such date, all
of the foregoing determined in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date of original execution of the Indenture is 101
Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Administration.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"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 clearing agency registered under the Exchange Act, specified for
that purpose as contemplated by Section 301 or any successor clearing agency
registered under the Exchange Act as contemplated by Section 305, 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.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Securities mature.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Security" means a Security bearing the legend specified in
Section 203 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee.
"Government Securities" means securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof.
"Holder" means a Person in whose name a Security is registered.
- 3 -
<PAGE>
"Indebtedness" means any indebtedness for money borrowed.
"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
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument due to the appointment of
one or more separate Trustees for any one or more separate series of Securities
pursuant to Section 809(e), "Indenture" shall mean, with respect to such series
of Securities for which any such Person is Trustee, 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 and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms adopted by means of one or more indentures supplemental hereto executed
and delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"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.
"Junior Subordinated Debt" means any Indebtedness of the Company
created or evidenced by an instrument which expressly provides that such
Indebtedness is subordinated in right of payment to the Securities.
"Lien" means any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind.
"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" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary,
any Assistant Secretary and any Vice President of the Company or any Subsidiary,
as the case may be.
- 4 -
<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, a Vice President or an Assistant Vice
President of the Company, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, any Subsidiary or 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 702.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment 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 306
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 or whether a
quorum is present at a meeting of Holders of Securities, (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 702, and (ii) 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
- 5 -
<PAGE>
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which a Responsible Officer of the Trustee actually 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 (and premium, if any) and/or interest on any Securities on behalf
of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest (or formula for determining the rate or
rates of interest), if any, thereon, the Stated Maturity or Maturities thereof
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization (including
any subdivision or ongoing business of any such entity or substantially all of
the assets of any such entity, subdivision or business).
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and/or interest on the Securities of that series are payable.
"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 306 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 or portion
thereof to be redeemed, means the date fixed for such redemption pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security or portion
thereof 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 301.
"Repurchase Date", when used with respect to any Security or portion
thereof to be repurchased, means the date fixed for such repurchase pursuant to
this Indenture.
- 6 -
<PAGE>
"Repurchase Price", when used with respect to any Security or portion
thereof to be repurchased, means the price at which it is to be repurchased
pursuant to this Indenture.
"Responsible Officer", shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means all Indebtedness of the Company, except (i)
Indebtedness under the Securities, and (ii) Indebtedness (including, without
limitation, any Junior Subordinated Debt) created or evidenced by an instrument
which expressly provides that such Indebtedness is subordinated in right of
payment to any other Indebtedness of the Company. Notwithstanding anything to
the contrary in the foregoing, Senior Debt shall not include (x) any
Indebtedness of the Company to any of its Subsidiaries or other Affiliates and
(y) any Indebtedness incurred for the purchase of goods or materials or for
services obtained in the ordinary course of business (other than with the
proceeds of revolving credit borrowings permitted hereby).
"Senior Payment Default" means any default in the payment of any
Obligation on any Senior Debt when due, whether at the stated maturity of any
such payment or by declaration of acceleration, call for redemption, mandatory
repurchase, payment or prepayment or otherwise.
"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.
- 7 -
<PAGE>
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect
on the date on which this Indenture is qualified under the TIA.
"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.
Section 102. Other Definitions.
Defined in
Term Section
---- -------
"Bankruptcy Law" 701
"Covenant Defeasance" 903
"Custodian" 701
"Event of Default" 701
"Legal Defeasance" 902
"Legal Holiday" 1403
"Notice of Default" 701
"Payment Default" 701
"Proceedings" 1302
"Obligations" 1302
"Securities Payment" 1302
Section 103. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
- 8 -
<PAGE>
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Securities means the Company and any successor obligor
upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them.
Section 104. 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 an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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 whether such covenant or condition
has been complied with; and
(4) a statement whether, in the opinion of each such
individual, such condition or covenant has been complied with.
- 9 -
<PAGE>
Every such certificate provided under this Indenture shall be without
personal recourse to the individual executing the same and may include an
express statement to such effect.
Section 105. 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 any 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, opinion or representations
with respect to the matters upon which such officer's 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. Any certificate or opinion of counsel may be stated to be based on the
certificates or opinions of other counsel, in which event it shall be
accompanied by a copy of such other certificates or opinions.
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. All applications, requests, certificates, statements or
other instruments given under this Indenture shall be without personal recourse
to any individual giving the same and may include an express statement to such
effect.
Section 106. Acts of Holders.
(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 (including Persons who hold
their Securities through a Holder which is a Depositary) in person or by an
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
- 10 -
<PAGE>
any purpose of this Indenture and (subject to Section 801) 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 by this
Indenture to be made, given or taken by the 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 in any reasonable manner provided that, in
any instance, the Trustee may require further proof with respect to any matter
referred to in this Section.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) The Company may fix any day as the record date for the purpose of
determining the Holders (including Persons who hold Securities through a Holder
which is a Depositary) 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 TIA ss. 312 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
(including Persons who hold Securities through a Holder which is a Depositary)
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.
With regard to any action that may be given or taken hereunder only by
Holders (including Persons who hold their Securities through a Holder which is a
Depositary) of a requisite principal amount of Outstanding Securities of any
series (or their duly appointed agents) and for which a record date is set
pursuant to this subsection (d), the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or prior to such
expiration date by Holders (including Persons who hold Securities through a
Holder which is a Depositary) of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents).
On or prior to any expiration date set pursuant to this subsection (d), the
Company may, on one or more occasions at its option, extend such date to any
later date. Nothing in this subsection (d) shall prevent any Holder (or any duly
appointed agent thereof) from giving or taking, after any expiration date, any
action identical to, or, at any time, contrary to or different from any action
given or taken, or purported to have been given and taken,
- 11 -
<PAGE>
hereunder by a Holder on or prior to such date, in which event the Company may
set a record date in respect hereof pursuant to this subsection (d).
Notwithstanding the foregoing, upon actual receipt by a Responsible
Officer of the Trustee, with respect to Securities of any series, of (i) any
Notice of Default pursuant to Section 701, (ii) any declaration or acceleration,
or any rescission and annulment of any such declaration, pursuant to Section
702, or (iii) any waiver given pursuant to Section 704 (any such notice,
declaration, rescission and annulment, or waiver being referred to herein as a
"Direction"), a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders (including Persons
who hold Securities through a Holder which is a Depositary) of Outstanding
Securities of such series entitled to join in such Direction, which record date
shall be the close of business on the day the Trustee receives such Direction.
The Holders (including Persons who hold Securities through a Holder which is a
Depositary) of Outstanding Securities of such series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to join
in such Direction, whether or not such Holders remain Holders after such record
date; provided that, unless such Direction shall have become effective by virtue
of Holders (including Persons who hold Securities through a Holder which is a
Depositary) of the requisite principal amount of Outstanding Securities of such
series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such Direction shall
automatically and without any action by any Person be canceled and be of no
further effect. Nothing in this paragraph shall prevent a Holder (or duly
appointed agent thereof) from giving, before or after the expiration of such
90-day period, a Direction contrary to or different from, or, after the
expiration of such period, identical to, a Direction that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date in respect thereof shall be set pursuant to this subsection (d).
(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.
Section 107. 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 (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with a Responsible Officer of the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration, or
- 12 -
<PAGE>
(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 specified in the first paragraph of this instrument (Attention:
General Counsel) or at any other address previously furnished in
writing to a Responsible Officer of the Trustee by the Company.
Section 108. 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 (including
Persons who hold Securities through a Holder which is a Depositary if the name
and address of such beneficial holder has been provided in writing to the Person
required to give such notice prior to the date such notice is given) affected by
such event, at such Holder's address as it appears in the Security Register or
as provided in writing by the Depositary, not later than the latest date, and
not earlier than the earliest date, 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. Any
notice mailed to the Holder in the manner herein prescribed shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice. 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
a Responsible Officer of 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 by or with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 109. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
Section 110. Rules of Construction.
Unless the context otherwise requires:
- 13 -
<PAGE>
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE II.
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series, including Global Securities representing
Securities of such series, shall be in the form established, without the
approval of any Holders or the Trustee, by or pursuant to a Board Resolution in
accordance with Section 301 or by 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 executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities may be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
- 14 -
<PAGE>
This is one of the Securities of the series designated therein and
issued pursuant to the within-mentioned Indenture.
Dated:
________________________________
The Bank of New York, as Trustee
--------------------------------
Authorized Signatory
Section 203. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall, in
addition to the provisions established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto in accordance with Section 201,
bear a legend in substantially the following form or such similar form as may be
required by the Depositary:
"Unless this certificate is presented by an authorized
representative of [Depositary] to the issuer or to its agent for
registration of transfer, exchange or payment, and any certificate
issued is registered in the name of [Depositary Nominee] or such other
name as requested by an authorized representative of [Depositary] and
any payment is made to [Depositary Nominee], ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, [Depositary Nominee], has an
interest herein."
ARTICLE III.
THE SECURITIES
Section 301. 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, without the approval of any Holders or the Trustee, by or pursuant
to authority granted by one or more Board Resolutions, and, subject to Section
303, there shall be set forth in an Officers' Certificate, or established in one
or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series, all or any of the following, as applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series) and the form of the Securities of the series;
- 15 -
<PAGE>
(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 lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 1007 and 1205 and except for
any Securities which, pursuant to Section 303, are deemed never to have
been authenticated and delivered hereunder) and the absence of such
limitation shall mean that the Company may issue from time to time
additional securities of such series without limitation as to aggregate
principal amount;
(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, or the method by which such date or
dates are determined or extended, on which the principal or
installments of principal and premium, if any, of the Securities of the
series is or are payable;
(5) the rate or rates (which may be fixed or variable) at
which the Securities of the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the date or
dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable, the Regular Record Date for
the interest payable on any Interest Payment Date and the
circumstances, if any in which the Company may defer interest payments
and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(6) whether the Company shall be required to maintain an
office in the Borough of Manhattan, the City of New York in accordance
with Section 502 hereof and the place or places, if any, where the
principal of (and premium, if any) and interest on Securities of the
series shall be payable, any Securities of the series may be
surrendered for registration of transfer or exchange and notices and
demands to or upon the Company with respect to the Securities of the
series and this Indenture may be served, other than or in addition to
the Corporate Trust Office of the Trustee and any office maintained for
such purpose in the Borough of Manhattan, the City of New York in
accordance with Section 502 hereof;
(7) if applicable, 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
- 16 -
<PAGE>
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) whether the Securities of the series will be convertible
into or exchangeable for shares of Common Stock, and if so, the terms
and conditions upon which such Securities will be so convertible or
exchangeable, and any deletions from or modifications or additions to
this Indenture to permit or to facilitate the issuance of such
convertible or exchangeable Securities or the administration thereof;
(10) the identity of each Security Registrar and Paying Agent,
if other than or in addition to the Trustee;
(11) if the amount of principal of, or any premium or interest
on, any Securities of the series may be determined by reference to an
index or pursuant to a formula, the manner in which such amounts shall
be determined;
(12) the applicability of, and any addition to or change in,
the covenants and definitions currently set forth in this Indenture;
(13) if other than denominations of $1,000 or any amount in
excess thereof which is an integral multiple of $1,000, the
denominations in which Securities of the series shall be issuable;
(14) any other event or events of default applicable with
respect to Securities of the series in addition to or in lieu of those
provided in Section 701 and any change in the right of the Trustee or
the Holders to declare the principal of or any premium or interest on
such Securities due and payable;
(15) if less 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 702;
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, if
so, (a) the Depositary with respect to such Global Security or
Securities and (b) the circumstances under which any such Global
Security may be exchanged for Securities registered in the name of, and
any transfer of such Global Security may be registered to, a Person
other than such Depositary or its nominee, if other than as set forth
in Section 305;
(17) if applicable, that the Securities of the series, in
whole or any specified part, shall not be defeasible pursuant to
Section 902 or Section 903 or both such Sections and, if other than by
a Company Order, the manner in which any election by the Company to
defend such Securities shall be evidenced;
- 17 -
<PAGE>
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 1001(v)); and
(19) CUSIP numbers.
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above and, subject to Section 303, 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 the same time. Unless otherwise provided, Securities of a single
series may have different terms, and a series may be reopened, without the
consent of the Holders of Securities of such series, for issuance of additional
Securities of such series.
If any of the terms of the 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 the series.
With respect to Securities of a series offered in a Periodic Offering,
such Board Resolution and Officers' Certificate or supplemental indenture may
provide general terms or parameters for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a Company
Order as contemplated by the third paragraph of Section 303.
Section 302. Denominations.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 301. 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 or any amount in excess thereof which is an integral
multiple of $1,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Chief Executive Officer, its Chief
Operating Officer, its Chief Financial Officer or one of its Vice Presidents,
and 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.
- 18 -
<PAGE>
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, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the actual receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for establishing the specific
terms of particular Securities being so offered, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or forms or terms of the Securities of the series have been established by
or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, 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 801) shall be
fully protected in conclusively relying upon
(a) an Opinion of Counsel stating:
(1) that the form or forms of such Securities have
been established in conformity with the provisions of this
Indenture;
(2) that the terms of such Securities have been
established in conformity with the provisions of this
Indenture;
(3) that authentication and delivery of such
Securities and the execution and delivery of the supplemental
indenture, if any, by the Trustee will not violate the terms
of the Indenture;
(4) that the Company has the corporate power to
issue, and has duly authorized, such Securities; and
(5) that such Securities, when authenticated and
delivered by a Responsible Officer of 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
against the Company in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer and other laws of general applicability
relating to or affecting the enforcement of creditors' rights
and to general equity principles;
- 19 -
<PAGE>
(b) an executed supplemental indenture, if any;
(c) a copy of a Board Resolution; and
(d) an Officers' Certificate;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of each form of
Securities of such series and that the opinions described in clauses (a)(2) and
(a)(5) above may state, respectively, that
(2) if the terms of such Securities are to be established
pursuant to a Company Order or pursuant to such procedures as may be
specified from time to time by a Company Order, all as contemplated by
a Board Resolution or action taken pursuant thereto, such terms will
have been duly authorized by the Company and established in conformity
with the provisions of this Indenture; and
(5) that such Securities, when executed by the Company,
completed, authenticated and delivered by the Trustee in accordance
with this Indenture, and issued and delivered by the Company and paid
for, all in accordance with any agreement of the Company relating to
the offering, issuance and sale of such Securities, will be duly issued
under this Indenture and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer and other
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles.
With respect to Securities of a series offered in a Periodic Offering,
the Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel, Company
Order and other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, in connection with the first authentication of a form of
Securities of such series and it shall not be necessary for the Company to
deliver such Opinion of Counsel and other documents (except as may be required
by the specified other procedures, if any, referred to above) at or prior to the
time of authentication of each Security of such series unless and until a
Responsible Officer of the Trustee receives notice that such Opinion of Counsel
or other documents have been superseded or revoked, and may assume compliance
with any conditions specified in such Opinion of Counsel (other than any
conditions to be performed by the Trustee). If such form or forms 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.
Each Security shall be dated the date of its authentication.
- 20 -
<PAGE>
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 a Responsible Officer of the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, 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 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series, the
Company may execute, and upon Company Order a Responsible Officer of the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten 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. In the case of Securities of
any series, such temporary Securities may be in the form of Global 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, subject to Section
305, for definitive Securities of like tenor 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 a Responsible Officer of the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series and of like tenor and of any authorized
denominations. 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 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" of each series of Securities for the purpose of
registering Securities and transfers of Securities as herein provided at the
Corporate Trust Office.
- 21 -
<PAGE>
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in any Place of Payment for such
series, the Company shall execute and a Responsible Officer of 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 and bearing a
number not contemporaneously outstanding.
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 the office or agency of the Company in any Place of Payment for
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and a Responsible Officer of 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 such Holder's 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 304, 1007 or 1205 not involving any transfer.
The Company may but 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
403 and ending at the close of business on the day of such mailing, (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 or (iii) to register the transfer of or exchange any certificated
Securities during a period beginning five days before the date of Maturity with
respect to such Security and ending on such date of Maturity.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 for Securities
- 22 -
<PAGE>
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 (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or the
Company determines that the Depositary is unable to continue as Depositary and
the Company thereafter fails to appoint a successor Depositary, (ii) the Company
provides for such exchange or registration of transfer pursuant to Section 301
of this Indenture, (iii) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so exchangeable and the
transfer thereof so registrable, or (iv) there shall have occurred and be
continuing an Event of Default with respect to the Securities of such series
which entitles the Holders of such Securities to accelerate the maturity
thereof. Upon the occurrence in respect of any Global Security of any series of
any one or more of the conditions specified in clauses (i), (ii), (iii) or (iv)
of the preceding sentence or such other conditions as may be specified as
contemplated by Section 301 for such series, such Global Security may be
exchanged for Securities not bearing the legend specified in Section 203 and
registered in the names of such Persons as may be specified by the Depositary
(including Persons other than the Depositary or its nominees).
Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security, including a Global Security, is surrendered
to the Trustee or the Company, together with such security, bond or indemnity as
may be required by the Trustee or the Company to save each of them and any agent
of either of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security, including a new
Global Security if the mutilated Security was a Global 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,
including a Global Security if the destroyed, lost or stolen Security was a
Global 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 upon its
written request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security, including a Global Security
if the destroyed, lost or stolen Security was a Global Security, of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
- 23 -
<PAGE>
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), if any, 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. A new
Security shall have such legends as appeared on the old Security unless the
Company determines otherwise.
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 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 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 in the Security Register at the close of business on
the Regular Record Date for such Interest Payment Date.
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 may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities 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
- 24 -
<PAGE>
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 5 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 such Holder's address as it
appears in the Security Register, not less than 15 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 308. 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 in the Security Register as
the owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 307) 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.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary (or its nominees) shall have any rights under this
Indenture with respect to such Global security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global
- 25 -
<PAGE>
Security or any Security represented thereby for all purposes whatsoever.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by a Depositary as Holder of such Global Security, or
impair, as between a Depositary and the owners of beneficial interests in such
Global Security, the operation of customary practices governing the exercise of
the rights of the Depositary (or its nominees) as Holder of such Global
Security.
Section 309. 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 canceled 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
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. The Trustee is hereby directed by the
Company to cancel the Securities held by the Trustee (subject to the record
retention requirements of the Exchange Act), and the Trustee shall return such
canceled Securities to the Company.
Section 310. Computation of Interest.
Except as otherwise specified pursuant to Section 301 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 and no interest will accrue with
respect to the 31st day of any month.
Section 311. CUSIP Number.
The Company in issuing the Securities may use "CUSIP" numbers, and if
it does so, the Trustee shall use the applicable CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company will promptly notify the Trustee of any change in
any CUSIP number.
- 26 -
<PAGE>
ARTICLE IV.
REDEMPTION OF SECURITIES
Section 401. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no
mandatory redemption or sinking fund obligations with respect to the Securities
of any series. Securities of any series which are redeemable before their Stated
Maturity in accordance with their terms as specifically established in
accordance with Section 301 shall be redeemable in accordance with their terms
and, except as otherwise provided by such terms, in accordance with this
Article.
Section 402. Notices to Trustee.
If the Company elects to redeem any Securities pursuant to any optional
redemption provisions established with respect to such series hereof, it shall
furnish to the Trustee, at least 40 days but not more than 60 days before the
Redemption Date, an Officers' Certificate setting forth (i) such Redemption
Date, (ii) the Redemption Price, (iii) if the Securities of such series have
different terms and less than all of the Securities of such series are to be
redeemed, the terms of the Securities to be redeemed and (iv) if less than all
the Securities of such series with identical terms are to be redeemed, the
principal amount of such 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 403. Selection of Securities to Be Redeemed.
If less than all of the Securities of like tenor of any series are to
be redeemed at any time, the Trustee shall select the particular Securities to
be redeemed among the Holders on a pro rata basis (and in such manner as
complies with applicable legal and stock exchange requirements, if any) or in
such other manner as the Trustee, in the exercise of its reasonable discretion,
deems fair and appropriate. In the event of partial redemption by lot, the
particular Securities to be redeemed from the Outstanding Securities of like
tenor of such series shall be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the Redemption Date by the Trustee
from the Outstanding Securities of like tenor of such series not previously
called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of them selected shall be in
- 27 -
<PAGE>
amounts of $1,000 or whole multiples of $1,000; except that if all of the
Securities of a Holder are to be redeemed, the entire outstanding amount of
Securities held by such Holder, even if not a multiple of $1,000, shall be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
Section 404. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
notice of redemption shall be delivered by first-class mail, postage prepaid, to
each Holder whose Securities are to be redeemed at each such Holder's address
appearing in the Security Register.
The notice shall identify the Securities (including CUSIP numbers) to
be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of like tenor
of any series are to be redeemed, the portion of the principal amount
of any Security of such series to be redeemed and that, after the
redemption date upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion shall be
issued;
(4) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(5) that, unless the Company defaults in making such
redemption payment, interest on Securities called for redemption ceases
to accrue on and after the Redemption Date;
(6) the paragraph of the Securities and/or Section of this
Indenture pursuant to which the Securities called for redemption are
being redeemed; and
(7) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 40 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph. The notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the Holder
receives such notice.
- 28 -
<PAGE>
In any case, failure to give such notice by mail or any defect in the notice to
the Holder of any Security shall not affect the validity of the proceeding for
the redemption of any other Security.
Section 405. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 404
hereof, Securities called for redemption become due and payable on the
redemption date at the redemption price plus accrued and unpaid interest, if
any, to such date.
Section 406. Deposit of Redemption Price.
At or before 10:00 a.m. Eastern Time on the 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 503) an amount of money, sufficient to pay the redemption
price of and accrued interest on all Securities to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the Redemption Price of (including any applicable
premium), and accrued interest on, all Securities to be redeemed.
Section 407. 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 301, 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 Regular Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 408. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be surrendered at a
Place of Payment for such series (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly
- 29 -
<PAGE>
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute, and the Trustee 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. To the extent a series of Securities represented by a Global
Security is to be redeemed only in part, a notation of such redemption shall be
made by the Trustee in the schedule of exchanges on the Global Security.
ARTICLE V
COVENANTS
Section 501. 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 the principal of (and premium,
if any) and interest on the Securities of such series in accordance with the
terms of such Securities and this Indenture. Principal of (premium, if any) and
interest on the Securities of any series shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Subsidiary of the
Company, holds as of 10:00 a.m. Eastern Time on the due date money, deposited by
the Company in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due. Such Paying Agent
shall return to the Company, no later than one Business Day following the date
of payment, any money (including accrued interest) that exceeds such amount of
principal (premium, if any) and interest paid on the Securities of such series.
The Company shall, unless otherwise provided for as contemplated by
Section 301, pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal of the Securities of any series
at the rate equal to 1% per annum in excess of the interest rate then applicable
to such series to the extent lawful. In addition, the Company shall pay interest
on the Securities of any series (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 502. Maintenance of Office or Agency.
Unless otherwise provided for as contemplated by Section 301, the
Company shall maintain in the Borough of Manhattan, the City of New York, and in
each Place of Payment for any series of securities, an office or agency (which
may be an office of the Trustee or an affiliate of the Trustee, the Security
Registrar or co-registrar) where Securities of such 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 such series and this Indenture
may be served. The Company shall give prompt written notice to the Trustee of
the location, and any change in the
- 30 -
<PAGE>
location, of such office or agency. If at any time the Company shall fail to
maintain such an 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, unless otherwise
provided for as contemplated by Section 301, to maintain an office or agency in
the Borough of Manhattan, the City of New York and in each Place of Payment for
Securities of any series for such purposes. The Company shall 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 503. 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 (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency in which such series of Securities is payable
sufficient to pay the principal (and premium, if any) or 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 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 (and
premium, if any) or interest on any Securities of such series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
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:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of such series in
trust for the benefit of the Holders of such Securities until such sums
shall be paid to such Holders or otherwise disposed of as herein
provided;
- 31 -
<PAGE>
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of such series; and
(3) during the continuance of any such default by the Company
(or any other obligor upon the Securities of such series) in the making
of any payment of principal (and premium, if any) or interest on the
Securities of such series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
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 (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) 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 on Company
Request.
Section 504. Commission Reports.
(i) So long as any of the Securities remain Outstanding, the Company
shall cause copies of all current, quarterly and annual financial reports on
Forms 8-K, 10-Q and 10-K, respectively, and all proxy statements, which the
Company is then required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act to be filed with the Trustee and mailed to the Holders
of such series of Securities at their addresses appearing in the Security
Register maintained by the Security Registrar, in each case, within 15 days of
filing with the Commission. The Company shall also comply with the provisions of
TIA ss. 314(a).
- 32 -
<PAGE>
(ii) If the Company is required to furnish annual or quarterly reports
to its stockholders pursuant to the Exchange Act, the Company shall cause any
such annual or quarterly report to its stockholders and any other financial
report furnished by it generally to its stockholders to be filed with the
Trustee and mailed to the Holders of each series of Securities Outstanding at
their addresses appearing in the Security Register maintained by the Security
Registrar, and such reports shall be in lieu of the delivery to such Holders of
the reports on Form 10-K and 10-Q described in clause (i) above if they contain
the information required by clause (i) above.
(iii) Delivery of such reports, information and documents to the
Trustee is for information purposes only and the Trustee's receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 505. Compliance Certificate.
(i) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to his or her knowledge each entity has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto) and that to his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Securities of any series is prohibited
or if such event has occurred, a description of the event and what action each
is taking or proposes to take with respect thereto.
(ii) The Company shall, so long as any of the Securities of any series
are Outstanding, deliver to the Trustee, forthwith upon any Officer becoming
aware of (a) any Default or Event of Default with respect to such series of
Securities or (b) any event of default under any other mortgage, indenture or
instrument, an Officers' Certificate specifying such Default, Event of Default
or event of default and what action the Company is taking or proposes to take
with respect thereto.
Section 506. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments and governmental levies
except (i) as contested in
- 33 -
<PAGE>
good faith by appropriate proceedings and with respect to which appropriate
reserves have been taken, if required, in accordance with GAAP or (ii) where the
failure to effect such payment is not adverse in any material respect to the
Holders.
Section 507. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that 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 shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 508. Corporate Existence.
Subject to Article 6 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of each Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders.
Section 509. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
- 34 -
<PAGE>
ARTICLE VI.
SUCCESSORS
Section 601. Limitations On Mergers, Consolidations or Sales of Assets.
The Company may not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions, to another Person unless:
(i) the Company is the surviving Person or the Person formed
by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made is a corporation organized or
existing under the laws of the United States, any state thereof or the
District of Columbia;
(ii) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made assumes all the obligations of the Company under the
Securities and this Indenture pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event
of Default exists; and
(iv) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, lease, conveyance or other disposition
shall have been made will have Consolidated Net Worth immediately after
the transaction equal to or greater than the Consolidated Net Worth of
the Company immediately preceding the transaction.
Section 602. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 601 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor corporation), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person has been named as the Company, herein.
- 35 -
<PAGE>
ARTICLE VII.
DEFAULTS AND REMEDIES
Section 701. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, and unless otherwise provided with respect to Securities of any
series pursuant to Section 301, 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):
(i) a default for 30 days in the payment when due of interest
on any Security of such series;
(ii) a default in payment when due of principal of or premium,
if any, on any Security of such series at Maturity, upon redemption or
otherwise;
(iii) a failure by the Company to deposit any "mandatory
sinking fund payment" (as defined in Section 1101 hereof), when and as
due, in respect of the Securities of such series;
(iv) a default in the performance or breach of Article 6;
(v) failure by the Company for 60 days after notice to comply
with any of its other agreements in this Indenture or any Security of
such series;
(vi) the Company or any Subsidiary of the Company pursuant to
or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case in which it is the debtor,
(c) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) admits in writing its inability generally to pay
its debts as the same become due;
- 36 -
<PAGE>
(vii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company or any
Subsidiary of the Company in an involuntary case in which it
is the debtor,
(b) appoints a Custodian of the Company or any
Subsidiary thereof or for all or substantially all of the
property of the Company or any Subsidiary thereof, or
(c) orders the liquidation of the Company or any
Subsidiary of the Company,
and the order or decree remains unstayed and in effect for 60 days; and
(viii) any other Event of Default provided with respect to
Securities of such series pursuant to Section 301.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (v) is not an Event of Default with respect to
any series of Securities until the Trustee notifies the Company in writing, or
the Holders of at least 25% in principal amount of the then Outstanding
Securities of such series notify the Company and the Trustee in writing, of the
Default and the Company does not cure the Default within 60 days after receipt
of such notice. The written notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
In the case of any Event of Default with respect to the Securities of
any series pursuant to the provisions of this Section 701 occurring by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company or any of its Subsidiaries the primary purpose of which was to allow the
Company to avoid payment of the premium, if any, that the Company would have had
to pay with respect to the Securities of such series if the Company then had
elected to redeem such Securities pursuant to the optional redemption
provisions, if any, established in accordance with this Indenture, an equivalent
premium shall also become and be immediately due and payable if such Securities
are repaid to the extent permitted by law, anything in this Indenture or in the
Securities of such series to the contrary notwithstanding.
- 37 -
<PAGE>
Section 702. Acceleration.
If an Event of Default with respect to the Outstanding Securities of
any series (other than an Event of Default specified in clauses (viii) and (ix)
of Section 701) occurs and is continuing, the Trustee by notice to the Company,
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series by written notice to the Company and the
Trustee, may declare the unpaid principal of (or, if any of the Securities of
such series are Original Issue Discount Securities, such lesser portion of the
principal amount of such Securities as may be specified in the terms thereof),
premium, if any, and any accrued and unpaid interest on all the Securities of
that series to be due and payable. Upon such declaration the principal (or
specified portion thereof), premium, if any, and interest shall be due and
payable immediately. If an Event of Default specified in clause (viii) or (ix)
of Section 701 occurs with respect to the Company or any Subsidiary thereof such
an amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in principal amount of the Outstanding Securities of such series
by written notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to such series (except
nonpayment of principal or interest that has become due solely because of the
acceleration) have been cured or waived.
Section 703. Other Remedies.
If an Event of Default with respect to the Outstanding Securities of
any series occurs and is continuing, the Trustee may pursue any available remedy
(under this Indenture or otherwise) to collect the payment of principal,
premium, if any, or interest on the Securities of such series or to enforce the
performance of any provision of such Securities or this Indenture.
The Trustee may maintain a proceeding at the expense of the Company
with respect to the Outstanding Securities of any series even if it does not
possess any of the Securities of such series or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder of such
Securities in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. All remedies are cumulative to the extent permitted by
law.
Section 704. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series by written notice to the Trustee may
waive an existing Default or Event of Default with respect to the Securities of
such series and its consequences, except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest on any
Security of such series held by a nonconsenting Holder (other than a rescission
of acceleration of the Securities of such series by the Holders of at least a
majority in aggregate principal amount of the Securities of such series and a
waiver of the payment default
- 38 -
<PAGE>
resulting from such acceleration). Upon any such waiver, such Default shall
cease to exist, and any Event of Default with respect to the Securities of such
series 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 705. Control by Majority.
Holders of a majority in principal amount of the Outstanding Securities
of any series may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee with respect to such series or
exercising any trust or power conferred on the Trustee with respect to such
series. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly prejudicial
to the rights of other Holders of Securities of such series or that may involve
the Trustee in personal liability. The Trustee may take any other action which
it deems proper which is not inconsistent with any such direction.
Section 706. 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:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to the Securities of such
series;
(ii) the Holders of at least 25% in principal amount of the
Outstanding Securities of such series make a written request to the
Trustee to pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and the provision of
indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the Outstanding Securities of such series do not
give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
- 39 -
<PAGE>
Section 707. Rights of Holders to Receive Payment.
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 premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date, or, in the case of a repurchase right at the option of the Holder, if any,
on the Repurchase Date specified pursuant to Section 301) 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 708. Collection Suit by Trustee.
If an Event of Default with respect to the Securities of any series
specified in Section 701(i) or (ii) occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Company or any other obligor for the whole amount of
principal, premium, if any, and interest remaining unpaid on the Securities of
such series and interest on overdue principal and, to the extent lawful,
interest, premium and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 709. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian 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 make such payments directly
to the Holders, to pay to the Trustee any amount due to it for the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 808 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 808 hereof out of the estate in any such proceeding, shall be denied for
any reason, payment of the same shall be secured by a Lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
properties which the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained 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
- 40 -
<PAGE>
composition affecting the Securities of any series 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.
Section 710. Priorities.
If the Trustee collects any money with respect to the Securities of any
series pursuant to this Article, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 808, including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of the Securities of such series for amounts due and
unpaid on the Securities of such series for principal, premium, if any, and
interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities of such series for principal, premium,
if any and interest, respectively;
Third: without duplication, to Holders of the Securities of such series
for any other principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation
governing any Indebtedness owing to such Holders under this Indenture or the
Securities of such series; and
Fourth: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders.
Section 711. 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 or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 707, or a suit by Holders of more than 10% in
principal amount of the Outstanding Securities of the affected series.
- 41 -
<PAGE>
ARTICLE VIII.
TRUSTEE
Section 801. Duties of Trustee.
(i) With respect to the Securities of any series, if an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(ii) With respect to the Securities of any series, except during the
continuance of an Event of Default actually known to a Responsible Officer of
the Trustee:
(a) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture or the TIA and the Trustee
need perform only those duties that are specifically set forth in this
Indenture or the TIA and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee, and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture (but need to confirm or investigate the accuracy or
mathematical calculations or other facts stated therein).
(iii) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) this paragraph does not limit the effect of paragraph (ii)
of this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 705 hereof.
(iv) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(i), (ii), and (iii) of this Section.
- 42 -
<PAGE>
(v) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(vi) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 802. Rights of Trustee.
(i) The Trustee may conclusively rely upon any document (whether in its
original or facsimile form) believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need not investigate any
fact or matter stated in any such document.
(ii) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(iii) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(iv) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(v) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
Section 803. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 812 and 813 hereof.
- 43 -
<PAGE>
Section 804. Trustee's Disclaimer.
The Trustee and the Authenticating Agent shall not be responsible for
and make no representation as to the validity or adequacy of this Indenture or
the Securities of any series, nor shall the Trustee or the Authenticating Agent
be accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, nor shall it or the Authenticating Agent be responsible for the
use or application of any money received by any Paying Agent other than the
Trustee, nor shall it be responsible for any statement or recital herein or any
statement in the Securities of any series or any other document in connection
with the sale of the Securities or pursuant to this Indenture other than its
certificate of authentication.
Section 805. Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if it is actually known to a Responsible
Officer of the Trustee, the Trustee shall mail to Holders of such Securities a
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment on any Security of any
series or in the payment of any sinking fund installment with respect to the
Securities of such series, the Trustee may withhold the notice if and so long as
a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of Securities of such
series.
Section 806. Preservation of Information.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of such series of Securities
received by the Trustee in its capacity as Security Registrar.
Section 807. Reports by Trustee to Holders.
Within 60 days after December 15 of each year commencing with the later
of December 15, 1999 or the first December 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall mail to the Holders of
Securities of all series a brief report dated as of such reporting date that
complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA ss. 313(b). The Trustee
shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which the Securities are listed. The Company shall promptly notify the
Trustee when the Securities are listed on any stock exchange or delisted
therefrom.
- 44 -
<PAGE>
Section 808. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as
agreed upon from time to time in writing and as is mutually satisfactory to the
Company and Trustee. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon request for all disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
The Company shall fully indemnify the Trustee against any and all
losses, liabilities, claims, damages, or expenses (including taxes other than
taxes based on the income of the Trustee) incurred by it arising out of or in
connection with the acceptance of its duties and the administration of the
trusts under this Indenture, except as set forth below, and including without
limitation, the costs and expenses of defending itself against any claim or
liability in connection with the execution or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel of its own selection and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 808 shall survive the
satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or willful
misconduct.
To secure the Company's payment obligations in this Section 808, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on the Securities of any series. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 701(viii) or (ix) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
Section 809. 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 810.
- 45 -
<PAGE>
(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 specifying
its intention to resign, the applicable series affected by such resignation, the
reason therefor and the date upon which such resignation shall become effective.
Notwithstanding the foregoing, unless the reason for such resignation is a
conflict pursuant to TIA ss. 310(b) as provided in Section 812 hereof, the
Trustee must resign with respect to all Securities if the Trustee resigns with
respect to any series of Securities. If the instrument of acceptance by a
successor Trustee required by Section 810 shall not have been delivered to the
Trustee within 60 days after the giving of such notice of resignation, the
resigning Trustee may petition at the expense of the Company 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 TIA ss. 310(b) 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 812
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 any one or more series of Securities or all Securities,
or (ii) subject to Section 711, 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 such series of 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
- 46 -
<PAGE>
particular series). 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 810, 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 810, 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 by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. 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 810. 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 (and the fees and expenses of its agents and counsel),
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
- 47 -
<PAGE>
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.
Whenever there is a successor Trustee with respect to one or more (but less than
all) series of securities issued pursuant to this Indenture, the terms
"Indenture" and "Securities" shall have the meanings specified in the provisos
to the respective definitions of those terms in Section 101 which contemplate
such situation.
(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 811. 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; in case
any of the Securities shall not have been authenticated by the Trustee then in
office, any successor by merger, conversion or consolidation to such Trustee may
authenticate such Securities either in the name of such predecessor hereunder or
in the name of the successor Trustee; and in all such
- 48 -
<PAGE>
cases such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 812. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trustee power, shall be subject to supervision or examination by Federal or
state authority and shall have a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 813. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
Section 814. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee,
with the concurrence of the Company, may appoint an Authenticating Agent or
Agents 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, 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, State or District of Columbia
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
- 49 -
<PAGE>
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 anytime 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.
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 reimbursement for such payments subject to Section
808.
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 alternate certificate
of authentication in the following form:
- 50 -
<PAGE>
This is one of the Securities of the series designated herein and
issued pursuant to the within-mentioned Indenture.
Dated:__________________________
THE BANK OF NEW YORK, as Trustee
By_______________________________
Authorized Signatory
The Bank of New York, as
Authenticating Agent
By_______________________________
Authorized Signatory
Section 815. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date of
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE IX.
DISCHARGE OF INDENTURE
Section 901. Defeasance and Discharge of this Indenture and the Securities.
The Company may, at the option of its Board of Directors evidenced by a
Board Resolution set forth in an Officers' Certificate, at any time, with
respect to the Securities of any series, elect to have either Section 902 or 903
be applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article 9.
- 51 -
<PAGE>
Section 902. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 901 of the option applicable
to this Section 902, the Company shall be deemed to have been discharged from
its obligations with respect to the Outstanding Securities of any series on the
date the conditions set forth below are satisfied with respect to such series
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities of such series, which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
905 and the other Sections of this Indenture referred to in clauses (i) and (ii)
of this Section 902, and to have satisfied all its other obligations under the
Securities of such series and this Indenture as it relates to such series (and
the Trustee, on demand of and 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: (i) the rights of
Holders of Outstanding Securities of such series to receive solely from the
trust fund described in Section 904, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Securities when such payments are due, (ii) the Company's obligations
with respect to such Securities under Sections 305, 306 and 502, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, the Trustee's rights under Section 808, and the
Company's obligations in connection therewith and (iv) this Article 9. Subject
to compliance with this Article 9, the Company may exercise its option under
this Section 902 notwithstanding the prior exercise of its option under Section
903 with respect to the Securities of such series.
Section 903. Covenant Defeasance.
Unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 301,
upon the Company's exercise under Section 901 of the option applicable to this
Section 903, the Company shall be released from its obligations under the
covenants contained in Sections 504, 505 and 506, Article 6 and Section 301(12)
with respect to the Outstanding Securities of any series on and after the date
the conditions set forth below are satisfied with respect to such series
(hereinafter, "Covenant Defeasance"), and the Securities of such series shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders of such Securities (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, such Covenant Defeasance means that, with respect
to the Outstanding Securities of any 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 covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
with respect to such series of Securities
- 52 -
<PAGE>
under Section 701(iv) or (v) but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby. In addition,
upon the Company's exercise under Section 901 of the option applicable to this
Section 903, subject to the satisfaction of the conditions set forth in Section
904, any failure or omission to comply with such obligations shall not
constitute a Default or Event of Default with respect to the Securities.
Section 904. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to application of either Section
902 or Section 903 to the Outstanding Securities of any series:
(i) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 812 who shall agree to comply with the
provisions of this Article 9 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
the Securities of such series, (a) cash in U.S. Dollars in an amount,
or (b) non-callable Government Securities 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, cash in U.S. Dollars in an amount, or (c) a combination
thereof, in such amounts, as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge (A) the principal of, premium,
if any, and interest on the Outstanding Securities of such series on
the Stated Maturity or on the applicable Redemption Date, as the case
may be, of such principal or installment of principal, premium, if any,
or interest on the day on which such payments are due and payable and
(B) any mandatory sinking fund payments or analogous payments
applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and such Securities; provided that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
non-callable Government Securities to said payments with respect to the
Securities of such series.
(ii) In the case of an election under Section 902, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably satisfactory to the Trustee confirming that (a) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (b) since the date hereof, 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 Legal 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 Legal Defeasance has not occurred.
- 53 -
<PAGE>
(iii) In the case of an election under Section 903, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States 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 in the same amount, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred.
(iv) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit or, in so far as Subsection 701(viii) or 701(ix)
is concerned, at any time in the period ending on the 91st day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(v) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which the Company is bound.
(vi) In the case of an election under either Section 902 or
903, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
Bankruptcy Law.
(vii) In the case of an election under either Section 902 or
903, the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to
its election under Section 902 or 903 was not made by the Company with
the intent of preferring the Holders of the series of Securities to be
defeased over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company
or others.
(viii) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in the United States,
each stating that all conditions precedent provided for relating to
either the Legal Defeasance under Section 902 or the Covenant
Defeasance under Section 903 (as the case may be) have been complied
with as contemplated by this Section 904.
Section 905. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 906, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 905, the
"Trustee") pursuant to Section 904 in respect of the Outstanding Securities of
any series shall be held in trust and applied by the Trustee, in
- 54 -
<PAGE>
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of the
Securities of such series of all sums due and to become due thereon in respect
of principal, 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 cash or non-callable Government
Securities deposited pursuant to Section 904 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article 9 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon the Company's request
any money or non-callable Government Securities held by it as provided in
Section 904 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 904(i)), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Section 906. Repayment to Company.
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, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its 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 the New York Times and The Wall Street Journal (national
edition), 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
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 907. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Dollars or
non-callable Government Securities in accordance with Section 902 or 903, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities of any series
to be defeased shall be revived and reinstated as though no deposit had
- 55 -
<PAGE>
occurred pursuant to Section 902 or 903 until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 902 or
903, as the case may be; provided, however, that, if the Company makes any
payment of principal of, 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 Security to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE X.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 1001. Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may amend this Indenture or enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(i) 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
(ii) 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 one or more specified series) or to surrender any right or
power herein conferred upon the Company; or
(iii) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(iv) 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 of any series in
certificated or uncertificated form; or
(v) 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
- 56 -
<PAGE>
(vi) to secure the Securities of any series; or
(vii) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(viii) 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 810; or
(ix) to cure any ambiguity or defect in or to correct or
supplement any provision herein which may be inconsistent with any
other provision in this Indenture or any Security of any series, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series in any
material respect; or
(x) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Section 1002. With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series at the time
Outstanding affected by such amendment or supplemental indenture (voting as one
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 amend this
Indenture or 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 such series under this Indenture; provided,
however, that no such amendment or supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any such affected 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 702, or change any Place of
Payment where, or the coin or currency in which, any such Security or
any premium or the 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 or repayment, on
or after the Redemption Date or any repayment date), or
- 57 -
<PAGE>
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any modifications or amendments to the Indenture with
respect to such series or to the terms and conditions of such series or
to approve a supplemental indenture with respect to such series, or the
consent of whose Holders is required for any waiver with respect to
such series of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(iii) modify any of the provisions of Sections 704 or 707 or
this Section 1002 or Article 8, 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 1002 and Article 8, or the deletion of this
proviso, in accordance with the requirements of Sections 810(b) and
1001(viii).
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 1003. 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 801) 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 1004. 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 of the series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby to the extent
provided therein.
- 58 -
<PAGE>
Section 1005. Compliance with TIA.
Every amendment or supplement to this Indenture or the Securities of
any series shall be set forth in a supplemental indenture that complies with the
TIA as then in effect.
Section 1006. Revocation and Effect of Consents.
Until an amendment, supplemental waiver or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. A supplemental indenture, amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder of the
series of Securities to which such amendment, supplemental waiver or waiver
relates.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders of the Securities of any series must consent to such
amendment or waiver. If the Company fixes a record date, the record date shall
be fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders furnished to the Trustee
prior to such solicitation or (ii) such other date as the Company shall
designate.
Section 1007. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article shall bear a notation in a 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 Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by a Responsible Officer of the Trustee in exchange for Outstanding
Securities of such series.
Section 1008. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 1002, the Company
shall give notice thereof to the Holders of each Outstanding Security so
affected, pursuant to Section 108, setting forth in general terms the substance
of such supplemental indenture.
- 59 -
<PAGE>
ARTICLE XI.
SINKING FUNDS
Section 1101. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no sinking
fund obligations with respect to Securities of any series. The sinking fund
obligations as to any series of Securities for which such obligations exist
shall be as provided by the terms of such series of Securities as specifically
established in accordance with Section 301 and, except as otherwise provided by
such terms, as provided in this Article.
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 1102. 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 1102. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of like tenor of a
series (other than any previously called for redemption) and (2) may apply as a
credit Securities of like tenor 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 like tenor 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 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. Such Securities shall be first applied to
the sinking fund payment next due and any excess shall be applied to the
following sinking fund payments in the order they are due.
Section 1103. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of like tenor of a series, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, 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 like tenor of that series pursuant to Section 1102 and, at the
time of delivery of such Officers' Certificate, will also
- 60 -
<PAGE>
deliver to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 403 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 404. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 407
and 408.
ARTICLE XII.
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
Section 1201. Applicability of Article.
Unless otherwise specifically provided for in accordance with Section
301 with respect to any series of Securities, the Company shall have no
repurchase obligations with respect to Securities of any series. Securities of
any series which are repurchasable before their Stated Maturity at the option of
the Holders in accordance with their terms as specifically established in
accordance with Section 301 shall be repurchasable in accordance with their
terms and, except as otherwise provided by such terms, in accordance with this
Article.
Section 1202. Notice of Repurchase Date.
Notice of any Repurchase Date with respect to Securities of any series
shall, unless otherwise specified by the terms of such Securities, be given by
the Company not less than 45 nor more than 60 days prior to such Repurchase Date
to each Holder of Securities of such series subject to repurchase in accordance
with Section 108.
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
(2) the Repurchase Price;
(3) the place or places where such Securities are to be
surrendered for payment of the Repurchase Price and the date by which
such Securities must be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must follow
to exercise a repurchase right;
(5) that exercise of the option to elect repurchase is
irrevocable; and
(6) the CUSIP numbers.
- 61 -
<PAGE>
No failure of the Company to give the foregoing notice shall limit any Holder's
right to exercise a repurchase right.
Section 1203. Deposit of Repurchase Price.
On or prior to the Repurchase 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 503) the amounts
required to be deposited in accordance with the applicable repurchase right
provisions or, if no such amount is specified, an amount of money sufficient to
pay the Repurchase Price of and (unless the Repurchase Date shall be an Interest
Payment Date) accrued interest, if any, on all of the Securities of such series
which are to be repurchased on that date.
Section 1204. Securities Payable on Repurchase Date.
The form of option to elect repurchase having been delivered as
specified in the form of Security for such series as provided in Article 2, the
Securities of such series so to be repurchased shall, on the Repurchase Date,
become due and payable at the Repurchase Price applicable thereto and from and
after such date (unless the Company shall default in the payment of the
Repurchase Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for repurchase in accordance with
said notice, such Security shall be paid by the Company at the Repurchase Price
together with accrued interest to the Repurchase Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to such Repurchase
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 Regular and Special Record Dates according to their terms and the
provisions of Section 307.
If the amount deposited in accordance with Section 1203 is insufficient
to pay the Repurchase Price of all of the Securities as to which the option to
elect repurchase exists under this Indenture and has been exercised, the Trustee
shall select the particular Securities to be repurchased on a pro rata basis
among all such Holders of all series of Securities having such repurchase right
and so exercising the option to elect repurchase (and in such manner as complies
with applicable legal and stock exchange requirements, if any). The Trustee
shall promptly notify the Company in writing of the Securities selected for
repurchase and the principal amount thereof. Securities and portions of them
selected shall be in amounts of $1,000 or whole multiples of $1,000. Except as
provided in this paragraph, provisions of this Indenture that apply to
Securities to be repurchased also apply to portions of Securities to be
repurchased.
If any such Security shall not be paid upon surrender thereof for
repurchase, the principal (and premium, if any) shall, until paid, bear interest
from the Repurchase Date at the rate prescribed therefor in such Security.
- 62 -
<PAGE>
Section 1205. Securities Repurchased in Part.
Any Security which by its terms may be repurchased in part at the
option of the Holder and which is to be repurchased only in part, or which is
repurchased only in part in accordance with Section 1204, shall be surrendered
at any office or agency of the Company designated for that purpose pursuant to
Section 502 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and a Responsible Officer
of the Trustee 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 unrepurchased
portion of the principal of the Security so surrendered. To the extent a series
of Securities represented by a Global Security is to be repurchased in part
only, a notation of such redemption shall be made by the Trustee in the schedule
of exchanges on the Global Security.
ARTICLE XIII.
SUBORDINATION
Section 1301. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Securities of each
series, by such Holder's acceptance thereof, likewise covenants and agrees, that
the indebtedness evidenced by the Securities of each series and the payment of
the principal thereof, premium, if any, sinking fund requirements therefor and
interest thereon shall be subordinate and subject in right of payment, to the
extent and in the manner hereinafter set forth, to the prior payment in full in
cash or cash equivalents of all Senior Debt.
Section 1302. Distribution on Dissolution, Liquidation and Reorganization.
Upon any distribution to creditors of the Company in a liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary, or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its properties, or upon an assignment for the benefit
of creditors or any other marshaling of the assets and liabilities of the
Company (each such event, if any, herein sometimes referred to as a
"Proceeding"):
(a) all principal of, premium, if any, interest (including
interest after the commencement of any such Proceeding at the rate
specified in the applicable Senior Debt) and commitment fees (the
"Obligations") due on, or to become due on or in respect of, all Senior
Debt shall first be paid in full in cash or cash equivalents before any
payment or distribution of any kind or character, whether in cash,
property or securities,
- 63 -
<PAGE>
by set off or otherwise (including any payment or distribution which
may be payable or deliverable by reason of the payment of any Junior
Subordinated Debt), on account of the principal of (and premium, if
any) or interest on any Securities or on account of any purchase,
redemption, retirement or other acquisition of Securities by the
Company, any Subsidiary of the Company, the Trustee or any Paying Agent
or on account of any other obligation of the Company in respect of any
Securities (all such payments, distributions, purchases, redemptions,
retirements and acquisitions, whether or not in connection with a
Proceeding, herein referred to, individually and collectively, as a
"Securities Payment"), or before the Holders of the Securities shall be
entitled to retain any assets so paid or distributed in respect
thereof; and
(b) until the Senior Debt is paid in full in cash or cash
equivalents (as provided in subsection (a) above), any Securities
Payment to which the Holders of the Securities or the Trustee for their
benefit would be entitled except for the provisions of this Section
1302, shall be paid or delivered by the Company or any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution directly to the holders of Senior
Debt or their representative or representatives or the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any Senior Debt may have been issued, as their respective
interests may appear.
For purposes of this Article 13 only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include (i) a payment or distribution of stock or
securities of the Company provided for by a plan of reorganization or
readjustment authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable bankruptcy law
or of any other corporation provided for by such plan of reorganization or
readjustment which stock or securities are subordinated in right of payment to
all then outstanding Senior Debt to the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article; or (ii)
any deposit, or payment made therefrom, pursuant to 9, with respect to any
series of Securities; provided that, in the case of any such payment from a
defeasance trust, the assets deposited in trust to fund such payment have been
so deposited for any period of at least 90 consecutive days without the
occurrence of a blockage of payment on such series of Securities pursuant to
this Section 1302 or Section 1303 hereof. 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 conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article 6 shall not be deemed a
Proceeding 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 conveyance or transfer such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article 6.
- 64 -
<PAGE>
Section 1303. No Payment When Senior Debt in Default.
In the event that any Senior Payment Default shall have occurred, then
no Securities Payment shall be made unless and until such Senior Payment Default
shall have been cured or waived in writing or shall have ceased to exist or all
Obligations in respect of such Senior Debt shall have been paid in full in cash
or cash equivalents.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1302 hereof would be applicable.
Section 1304. Payment to Holders of Senior Debt.
Subject to the provisions of Section 1306, in the event that,
notwithstanding the provisions of Section 1302 or Section 1303, any Securities
Payment shall be received by the Trustee on behalf of the Holders of the
Securities (i) from the Company in violation of such provisions, or (ii) from
any other Person under such circumstances that such payment would, if made
directly by the Company, be in violation of such provisions, such payment or
distribution shall be held by the Trustee in trust for the benefit of, and shall
immediately be paid over by the Trustee, upon written request by a Person
entitled to give notice on behalf of such Senior Debt as specified in Section
1310, to the holders of Senior Debt or their representative or representatives,
or to the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt.
Upon any payment or distribution of assets or securities of the Company
referred to in Sections 1302 and 1303, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree of a court of
competent jurisdiction, or upon any certificate of any liquidating trustee or
agent or other similar Person making any payment or distribution to the Trustee
or to the Holders of the Securities, for the purpose of ascertaining the persons
entitled to participate in such payment or distribution, the holders of the
Senior Debt, the amount thereof or payment thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
13. 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 Debt to participate in any payment or distribution referred to in
Sections 1302 and 1303, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior Debt
held by such Person, as to the extent to which such Person is entitled to
participation in such payment or distribution, and as to other facts pertinent
to the rights of such Person under Sections 1302 and 1303, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
- 65 -
<PAGE>
Section 1305. Subrogation.
Subject to the payment in full in cash or cash equivalents of all
Senior Debt at the time outstanding, the Holders of the Securities shall be
subrogated to the rights of each holder of Senior Debt (to the extent of the
payments or distributions made to such holder pursuant to the provisions of
Sections 1302, 1303 and 1304) to receive payments or distributions of cash,
assets or securities of the Company applicable to the Senior Debt until the
Securities shall be paid in full. No payments or distributions to holders of
Senior Debt of cash, assets or securities of the Company to which Holders of
Securities would be entitled except for the provisions of this Article 13, and
no payment over pursuant to the provisions of this Article 13 to holders of such
Senior Debt by the Holders of Securities shall, as among the Company, its
creditors other than the holders of Senior Debt, and the Holders of the
Securities, be deemed to be a payment by the Company on account of the Senior
Debt, it being understood that the provisions of this Article 13 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 the Senior Debt, on the other
hand, and nothing contained in this Article 13 or elsewhere in this Indenture,
or in the Securities, is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Debt, and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of, premium, if any, and
interest on the Securities, as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of Senior Debt, nor shall anything herein or therein prevent the
Trustee or the Holder of any Securities from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 13 of the holders of Senior Debt in respect
of cash, property or securities of the Company received upon the exercise of any
such remedy.
Section 1306. Payment on Securities Permitted.
Nothing contained in this Article 13 or elsewhere in this Indenture, or
in any of the Securities, shall prevent the Company from making payment of the
principal of, sinking fund, if any, premium, if any, or interest on the
Securities, at any time, except under the conditions described in Section 1303
and except during the pendency of any Proceeding within the meaning of Section
1302. Nothing contained in this Article 13 or elsewhere in this Indenture, or in
any of the Securities, shall prevent the application by the Trustee of any
moneys deposited with it hereunder for the purpose, to the payment of or on
account of the principal of, sinking fund, if any, or premium, if any, or
interest on the Securities, unless the Trustee shall have received written
notice, directed to it at its Corporate Trust Office as provided in Section
1310.
Section 1307. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Securities, by such Holder's acceptance thereof,
authorizes and directs the Trustee in such Holder's behalf to take such action
as may be necessary or appropriate
- 66 -
<PAGE>
to effectuate, as between the Holders of the Securities and the holders of
Senior Debt, the subordination provided in this Article 13 and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1308. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt 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 by any such holder, or by any noncompliance by the Company
with 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 Debt may, at any time and from time to time without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities 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 Debt, 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 Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) permit the
Company to borrow, repay and then reborrow any or all of the Senior Debt; (iii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Debt; (iv) release any Person liable in any manner
for the collection of Senior Debt; (v) exercise or refrain from exercising any
rights against the Company and any other Person; and (vi) apply any sums
received by them to Senior Debt.
Section 1309. Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article 13 in respect of any Senior Debt at any time held by it, to the same
extent as any other holder of Senior Debt, and nothing in Section 813 or
elsewhere in this Indenture shall deprive or be construed to deprive the Trustee
of its rights as such holder.
Nothing in this Article 13 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 808 hereof.
Section 1310. Notices to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities, but failure
to give such notice shall not affect the subordination of the Securities to the
extent herein provided if notice is otherwise given as hereinafter provided in
this
- 67 -
<PAGE>
Section 1310. 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 to or
by the Trustee in respect of the Securities, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof from the
Company, any holder of Senior Debt or any trustee, fiduciary or agent therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 801 hereof, shall be entitled in all respects to
assume that no such facts exist. Any notice required or permitted to be given to
the Trustee by a holder of Senior Debt or a trustee, fiduciary or transfer agent
therefor shall be in writing and shall be sufficient for every purpose hereunder
in writing and either (i) sent via facsimile to the Trustee, the receipt of
which shall be confirmed via telephone, or (ii) mailed, first class postage
prepaid, or sent overnight carrier, to the Trustee addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address furnished in writing to such holder of the
Senior Debt by the Trustee. Notwithstanding anything else contained herein, no
notice, request or other communication to or with the Trustee shall be deemed
given unless received by a Responsible Officer at the Trustee's principal
corporate trust office.
Section 1311. No Fiduciary Duty by Trustee to Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or the
Company or any other Person moneys or assets to which any holders of Senior Debt
shall be entitled by virtue of this Article 13 or otherwise. With respect to the
holders of Senior Debt, the Trustee undertakes to perform or observe only such
of its covenants and obligations as are set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Debt shall be read
into this Indenture against the Trustee.
Section 1312. Paying Agent Treated as Trustee.
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 13 shall in such case (unless the context shall
otherwise require) 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 13 in place of the Trustee.
ARTICLE XIV.
MISCELLANEOUS
Section 1401. TIA Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties shall control.
- 68 -
<PAGE>
Section 1402. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Authenticating Agent, the Security Registrar or the Paying Agent
may make reasonable rules and set reasonable requirements for their respective
functions.
Section 1403. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or Minneapolis, Minnesota or at a place of
payment are authorized or obligated by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 1404. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities, this Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of the
Securities by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Securities.
Section 1405. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy shall be sufficient to prove this Indenture.
Section 1406. Governing Law.
This Indenture shall be governed by and interpreted under the laws of
the State of New York, and any dispute arising out of, connected with, related
to, or incidental to the relationship established between the Company, the
Trustee and the Holders in connection with this Indenture, and whether arising
in contract, tort, equity or otherwise, shall be resolved in accordance with the
internal laws (as opposed to the conflicts of laws provisions) and decisions of
the State of New York.
Section 1407. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
- 69 -
<PAGE>
Section 1408. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 1409. Severability.
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 1410. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 1411. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
- 70 -
<PAGE>
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
UNITED HEALTHCARE CORPORATION
By __________________________________
Allan J. Weiss
Vice President and Treasurer
Attest:
______________________
David J. Lubben
Secretary
THE BANK OF NEW YORK, as Trustee
By __________________________________
Its _________________________________
- 71 -
<PAGE>
Exhibit 4.3
UNITED HEALTHCARE CORPORATION
TO
THE BANK OF NEW YORK
TRUSTEE
----------------------------
JUNIOR SUBORDINATED INDENTURE
DATED AS OF NOVEMBER 15, 1998
<PAGE>
UNITED HEALTHCARE CORPORATION
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Junior Subordinated Indenture, dated as of
November 15, 1998.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- --------------- ---------
ss.310 (a) (1), (2) and (5)......................... Not Applicable
(a) (3)...................................... Not Applicable
(a) (4)...................................... Not Applicable
(b).......................................... 6.8
............................................. 6.10
(c).......................................... Not Applicable
ss.311 (a).......................................... 6.13(a)
(b).......................................... 6.13(b)
(b) (2)...................................... 7.3(a) (2)
............................................. 7.3(a) (2)
ss.312 (a).......................................... 7.1
............................................. 7.2(a)
(b).......................................... 7.2(b)
..........................................(c) 7.2(c)
ss.313 (a).......................................... 7.3(a)
(b).......................................... 7.3(b)
(c).......................................... 7.3(a), 7.3(b)
(d).......................................... 7.3(c)
ss.314 (a) (1), (2) and (3)......................... 7.4
(a) (4)...................................... 10.5
(b).......................................... Not Applicable
(c) (1)...................................... 1.2
(c) (2)...................................... 1.2
(c) (3)...................................... Not Applicable
(d).......................................... Not Applicable
(e).......................................... 1.2
(f).......................................... Not Applicable
ss.315 (a).......................................... 6.1(a)
(b).......................................... 6.2
............................................. 7.3(a) (6)
(c).......................................... 6.1(b)
- i -
<PAGE>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- --------------- ---------
(d).......................................... 6.1 (c)
(d) (1)...................................... 6.1(a) (1)
(d) (2)...................................... 6.1(c) (2)
(d) (3)...................................... 6.1(c) (3)
(e).......................................... 5.14
ss.316 (a).......................................... 1.1
(a) (1) (A).................................. 5.12
(a) (1) (B).................................. 5.13
(a) (2)...................................... Not Applicable
(b).......................................... 5.8
(c).......................................... 1.4(f)
ss.317 (a) (1)...................................... 5.3
(a) (2)...................................... 5.4
(b).......................................... 10.3
ss.318 (a).......................................... 1.7
- --------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Junior Subordinated Indenture.
- ii -
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions............................................................1
Section 1.2. Compliance Certificate and Opinions....................................9
Section 1.3. Forms of Documents Delivered to Trustee...............................10
Section 1.4. Acts of Holders.......................................................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.................................................14
Section 1.12. Governing Law.........................................................14
Section 1.13. Non-Business Days.....................................................14
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...........................................19
Section 2.4. Additional Provisions Required in Global Security.....................21
Section 2.5. Form of Trustee's Certificate of Authentication.......................22
ARTICLE III. THE SECURITIES
Section 3.1. Title and Terms.......................................................22
Section 3.2. Denominations.........................................................25
Section 3.3. Execution, Authentication, Delivery and Dating........................25
Section 3.4. Temporary Securities..................................................26
Section 3.5. Registration, Transfer and Exchange...................................27
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities......................29
Section 3.7. Payment of Interest; Interest Rights Preserved........................29
Section 3.8. Persons Deemed Owners.................................................31
Section 3.9. Cancellation..........................................................31
Section 3.10. Computation of Interest...............................................31
Section 3.11. Deferrals of Interest Payment Dates...................................31
Section 3.12. Right of Set-Off......................................................33
Section 3.13. Agreed Tax Treatment..................................................33
Section 3.14. Shortening or Extension of Stated Maturity............................33
Section 3.15. CUSIP Numbers.........................................................33
</TABLE>
- i -
<PAGE>
<TABLE>
<S> <C>
ARTICLE IV. SATISFACTION AND DISCHARGE
Section 4.1. Satisfaction and Discharge of Indenture...............................34
Section 4.2. Application of Trust Money............................................35
ARTICLE V. REMEDIES
Section 5.1 Events of Default.....................................................35
Section 5.2. Acceleration of Maturity; Rescission and Annulment....................36
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.......38
Section 5.4. Trustee May File Proofs of Claim......................................38
Section 5.5. Trustee May Enforce Claim Without Possession of Securities............39
Section 5.6. Application of Money Collected........................................39
Section 5.7. Limitation on Suits...................................................40
Section 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities.....41
Section 5.9. Restoration of Rights and Remedies....................................41
Section 5.10. Rights and Remedies Cumulative........................................41
Section 5.11. Delay or Omission Not Waiver..........................................41
Section 5.12. Control by Holders....................................................42
Section 5.13. Waiver of Past Defaults...............................................42
Section 5.14. Undertaking for Costs.................................................43
Section 5.15. Waiver of Usury, Stay or Extension Laws...............................43
ARTICLE VI. THE TRUSTEE
Section 6.1. Certain Duties and Responsibilities...................................43
Section 6.2. Notice of Defaults....................................................44
Section 6.3. Certain Rights of Trustee.............................................45
Section 6.4. Not Responsible for Recitals or Issuance of Securities................46
Section 6.5. May Hold Securities...................................................46
Section 6.6. Money Held in Trust...................................................46
Section 6.7. Compensation and Reimbursement........................................46
Section 6.8. Disqualification; Conflicting Interests...............................47
Section 6.9. Corporate Trustee Required; Eligibility...............................47
Section 6.10. Resignation and Removal; Appointment of Successor.....................48
Section 6.11. Acceptance of Appointment by Successor................................49
Section 6.12. Merger, Conversion, Consolidation or Succession to Business...........50
Section 6.13. Preferential Collection of Claims Against Company.....................51
Section 6.14. Appointment of Authenticating Agent...................................51
Section 6.15. Trustee's Application for Instructions from the Company...............52
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1. Company to Furnish Trustee Names and Addresses of Holders.............53
Section 7.2. Preservation of Information, Communications to Holders................53
</TABLE>
- ii -
<PAGE>
<TABLE>
<S> <C>
Section 7.3. Reports by Trustee....................................................53
Section 7.4. Reports by Company....................................................54
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms..................54
Section 8.2. Successor Corporation Substituted.....................................55
ARTICLE IX. SUPPLEMENTAL INDENTURES
Section 9.1. Supplemental Indentures without Consent of Holders....................56
Section 9.2. Supplemental Indentures with Consent of Holders.......................57
Section 9.3. Execution of Supplemental Indentures..................................58
Section 9.4. Effect of Supplemental Indentures.....................................59
Section 9.5. Conformity with Trust Indenture Act...................................59
Section 9.6. Reference in Securities to Supplemental Indentures....................59
ARTICLE X. COVENANTS
Section 10.1. Payment of Principal, Premium and Interest............................59
Section 10.2. Maintenance of Office or Agency.......................................60
Section 10.3. Money for Security Payments to be Held in Trust.......................60
Section 10.4. Statement as to Compliance............................................61
Section 10.5. Waiver of Certain Covenants...........................................62
Section 10.6. Additional Sums.......................................................62
Section 10.7. Additional Covenants..................................................63
Section 10.8. Calculation of Original Issue Discount................................63
ARTICLE XI. REDEMPTION OF SECURITIES
Section 11.1 Applicability of This Article.........................................64
Section 11.2. Election to Redeem; Notice to Trustee.................................64
Section 11.3. Selection of Securities to be Redeemed................................64
Section 11.4. Notice of Redemption..................................................65
Section 11.5. Deposit of Redemption Price...........................................66
Section 11.6. Payment of Securities Called for Redemption...........................66
Section 11.7. Right of Redemption of Securities Initially Issued to a UHC Trust.....66
ARTICLE XII. SINKING FUNDS
Section 12.1. Applicability of Article..............................................67
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.................67
Section 12.3. Redemption of Securities for Sinking Fund.............................67
ARTICLE XIII. SUBORDINATION OF SECURITIES
Section 13.1. Securities Subordinate to Senior and Subordinated Debt................69
Section 13.2. Payment Over of Proceeds Upon Dissolution, Etc. ......................69
</TABLE>
- iii -
<PAGE>
<TABLE>
<S> <C>
Section 13.3. Prior Payment to Senior and Subordinated Debt Upon
Acceleration of Securities..........................................70
Section 13.4. No Payment When Senior and Subordinated Debt in Default...............71
Section 13.5. Payment Permitted If No Default.......................................72
Section 13.6. Subrogation to Rights of Holders of Senior Debt.......................72
Section 13.7. Provisions Solely to Define Relative Rights...........................72
Section 13.8. Trustee to Effectuate Subordination...................................73
Section 13.9. No Waiver of Subordination Provisions.................................73
Section 13.10. Notice to Trustee.....................................................74
Section 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent .......74
Section 13.12. Trustee Not Fiduciary for Holders of Senior and Subordinated Debt ....75
Section 13.13. Rights of Trustee as Holder of Senior and Subordinated Debt;
Preservation of Trustee's Rights....................................75
Section 13.14. Article Applicable to Paying Agents................ ..................75
Section 13.15. Certain Conversions or Exchanges Deemed Payment.... ..................75
</TABLE>
- iv -
<PAGE>
JUNIOR SUBORDINATED INDENTURE, dated as of November 15, 1998, between
UNITED HEALTHCARE CORPORATION, a Minnesota corporation (hereinafter called the
"Company") having its principal office at 300 Opus Center, 9900 Bren Road East,
Minnetonka, Minnesota 55343, and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (hereinafter called the "Trustee") having its corporate
trust office at 101 Barclay Street, Floor 21 West, New York, New York 10286.
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 junior
subordinated debt securities in series (hereinafter called the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more business trusts (each a "UHC Trust,"
and, collectively, the "UHC Trusts") of preferred trust interests in such Trusts
(the "Preferred Securities") and common interests in such Trusts (the "Common
Securities" and, collectively with the Preferred Securities, the Trust
Securities), and to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and 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 covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any 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:
(a) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(b) 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;
(c) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted
<PAGE>
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles which are generally accepted at
the date or time of such computation; provided, that when two or more principles
are so generally accepted, it shall mean that set of principles consistent with
those in use by the Company; and
(d) 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.
"ADDITIONAL INTEREST" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security.
"ADDITIONAL SUMS" has the meaning specified in Section 10.6.
"ADDITIONAL TAXES" means the sum of any additional taxes, duties and other
governmental charges to which a UHC Trust has become subject from time to time
as a result of a Tax Event.
"ADMINISTRATIVE TRUSTEE" means, in respect of any UHC Trust, each Person
identified as an "Administrative Trustee" or an "Administrative Agent" in the
related Trust Agreement, solely in such Person's capacity as Administrative
Trustee or an Administrative Agent, as the case may be, of such UHC Trust under
such Trust Agreement and not in such Person's individual capacity, or any
successor administrative trustee or successor administrative agent, as the case
may be, appointed as therein provided.
"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; PROVIDED, HOWEVER, no UHC Trust to which
Securities have been issued shall be deemed to be an Affiliate of the Company.
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.
"ALLOCABLE AMOUNTS," when used with respect to any Senior and Subordinated
Debt, means all amounts due or to become due on such Senior and Subordinated
Debt less, if applicable, any amount which would have been paid to, and retained
by, the holders of such Senior and Subordinated Debt (whether as a result of the
receipt of payments by the holders of such Senior and Subordinated Debt from the
Company or any other obligor thereon or from any holders of, or trustee in
respect of, other indebtedness that is subordinate and junior in right of
payment to such Senior and Subordinated Debt pursuant to any provision of such
indebtedness for the payment over of amounts received on account of such
indebtedness to the holders of such Senior and Subordinated Debt or otherwise)
but
- 2 -
<PAGE>
for the fact that such Senior and Subordinated Debt is subordinate or junior in
right of payment to (or subject to a requirement that amounts received on such
Senior and Subordinated Debt be paid over to obligees on) trade accounts payable
or accrued liabilities arising in the ordinary course of business.
"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.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any committee of that board duly authorized 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, or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to a UHC Trust, the principal office of the Property
Trustee under the related Trust Agreement, is closed for business.
"CAPITAL SECURITIES" has the meaning specified in the first recital of this
Indenture.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"COMMON SECURITIES" has the meaning specified in the first recital of this
Indenture.
"COMMON STOCK" means the common stock, par value $1.25 per share, of the
Company.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, the written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the Vice Chairman of the Board of Directors, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
- 3 -
<PAGE>
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which at the date of original execution of the Indenture is 101 Barclay Street,
Floor 21 West, New York, New York 10286, Attention: Corporate Trust
Administration.
"CORPORATION" includes a corporation, association, company, joint-stock
company or business trust.
"DEBT" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; and (vii) every obligation of the
type referred to in clauses (i) through (vi) of another Person and all dividends
of another Person the payment of which, in either case, such Person has
guaranteed or is responsible or liable for, directly or indirectly, as obligor
or otherwise.
"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 by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"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.
"DISTRIBUTIONS," with respect to the Trust Securities issued by a UHC
Trust, means amounts payable in respect of such Trust Securities as provided in
the related Trust Agreement and referred to therein as "Distributions."
"DOLLAR" OR "U.S. $" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
"EVENT OF DEFAULT" has the meaning specified in Article V unless otherwise
specified in the supplemental indenture or the Officers' Certificate delivered
pursuant to Section 3.1 hereof creating a series of Securities.
- 4 -
<PAGE>
"EXCHANGE ACT" means the Securities Exchange Act of 1934 as amended and any
statute successor thereto, in each case as amended from time to time.
"EXTENSION PERIOD" has the meaning specified in Section 3.11.
"UHC GUARANTEE" means the guarantee by the Company of distributions on the
Preferred Securities of a UHC Trust to the extent provided in the related
Guarantee Agreement.
"UHC TRUST" has the meaning specified in the first recital of this
Indenture.
"GLOBAL SECURITY" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depositary or
its nominee for such series, and registered in the name of such Depositary or
its nominee.
"GUARANTEE AGREEMENT" means the Guarantee Agreement substantially in the
form attached hereto as Annex C, or substantially in such form as may be
specified as contemplated by Section 3.1 with respect to the Securities of any
series, in each case as amended from time to time.
"HOLDER" means a Person in whose name a Security is registered in the
Securities 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 or one or more
Officers' Certificates delivered pursuant to Section 3.1 and shall include the
terms of each particular series of Securities established as contemplated by
Section 3.1.
"INTEREST PAYMENT DATE" means as to each series of Securities the Stated
Maturity of an installment of interest on such Securities.
"INVESTMENT COMPANY EVENT" means the receipt by the Company and the UHC
Trust of an Opinion of Counsel experienced in such matters to the effect that,
as a result of any change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, the UHC Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which change becomes effective on or after the
date of issuance of the Preferred Securities of the UHC Trust.
"JUNIOR SUBORDINATED PAYMENT" has the meaning specified in Section 13.2.
"MATURITY" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
- 5 -
<PAGE>
"MOODY'S" means Moody's Investors Service, Inc.
"NOTICE OF DEFAULT" means a written notice of the kind specified in Section
5.1(3).
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means an opinion from legal counsel. The counsel may
be an employee of or counsel to the Company, any Subsidiary or the Trustee.
"ORIGINAL ISSUE DATE" means the date of issuance specified as such in each
Security.
"OUTSTANDING" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or 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 a Responsible Officer of the Trustee
actually 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 a Responsible Officer 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 such other obligor. Upon the written request of the Trustee, the
Company shall furnish to a Responsible Officer of the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Company to be owned or held by or for the account of the Company, or any
other obligor on the Securities or any Affiliate of the
- 6 -
<PAGE>
Company or such obligor, and, subject to the provisions of Section 6.1, a
Responsible Officer of the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of 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" means, with respect to the Securities of any series, the
place or places where the principal of (and premium, if any) and interest on the
Securities of such series are payable pursuant to Sections 3.1 and 3.11.
"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 lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"PROCEEDING" has the meaning specified in Section 13.2.
"PROPERTY TRUSTEE" means, in respect of any UHC Trust, the commercial bank
or trust company identified as the "Property Trustee" in the related Trust
Agreement, solely in its capacity as Property Trustee of such UHC Trust under
such Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
therein provided.
"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
with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, (i) in the case
of Securities of a series represented by one or more Global Securities, the
Business Day next preceding such Interest Payment Date and (ii) in the case of
Securities of a series not represented by one or more Global Securities, the
date which is fifteen days next preceding such Interest Payment Date (whether or
not a Business Day).
- 7 -
<PAGE>
"RESPONSIBLE OFFICER", shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"S&P" means Standard & Poor's Ratings Services.
"SECURITIES" or "SECURITY" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 3.5.
"SENIOR AND SUBORDINATED DEBT" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Company, whether incurred on or prior to the date of this Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Securities, PROVIDED,
HOWEVER, that Senior and Subordinated Debt shall not be deemed to include (a)
any Debt of the Company which, when incurred and without respect to any election
under Section 1111(b) of the Bankruptcy Reform Act of 1978, as amended, was
without recourse to the Company, (b) any Debt of the Company to any of its
Subsidiaries, (c) Debt to any employee of the Company, and (d) any Securities.
"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 pursuant to
the terms of such Security as the date on which the principal of such Security
or such installment of interest is due and payable, in the case of such
principal, as such date may be shortened or extended as provided pursuant to the
terms of such Security and this Indenture.
"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.
For purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
- 8 -
<PAGE>
"TAX EVENT" means the receipt by the UHC Trust of an Opinion of Counsel (as
defined in the relevant UHC Trust Agreement) experienced in such matters to the
effect that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of thePreferred Securities of such UHC Trust, there is more than an
insubstantial risk that (i) such UHC Trust is, or will be within 90 days of the
date of such Opinion of Counsel, subject to United States Federal income tax
with respect to income received or accrued on the corresponding series of
Securities, (ii) interest payable by the Company on such corresponding series of
Securities is not, or within 90 days of the date of such Opinion of Counsel,
will not be, deductible by the Company, in whole or in part, for United States
Federal income tax purposes or (iii) such UHC Trust is, or will be within 90
days of the date of such Opinion of Counsel, subject to more than a DE MINIMIS
amount of other taxes, duties or other governmental charges.
"TRUST AGREEMENT" means the Trust Agreement substantially in the form
attached hereto as Annex A, as amended by the form of Amended and Restated Trust
Agreement substantially in the form attached hereto as Annex B, or substantially
in such form as may be specified as contemplated by Section 3.1 with respect to
the Securities of any series, in each case as amended from time to time.
"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 (15 U.S.C.
ss.ss. 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"TRUST SECURITIES" has the meaning specified in the first recital of this
Indenture.
"VICE PRESIDENT" when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 1.2. COMPLIANCE CERTIFICATE 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 an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied
- 9 -
<PAGE>
with and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent (including covenants compliance with which constitute
a condition precedent), if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.5) 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. FORMS 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 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.
- 10 -
<PAGE>
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.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to 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 an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments is or 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.
(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
the certificate of any 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 Person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person 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 and in accordance
with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
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) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, PROVIDED THAT the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next
- 11 -
<PAGE>
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date, PROVIDED THAT, no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, PROVIDED THAT, no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, PROVIDED THAT, no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 10.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which sets such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto,
- 12 -
<PAGE>
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to 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 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, any holder of Preferred Securities or
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, Attention: Corporate rust Administration, or
(2) the Company by the Trustee, any Holder or any holder of Preferred
Securities shall be sufficient for every purpose (except as otherwise
provided in Section 5.1) hereunder if in writing and mailed, first class,
postage prepaid, to the Company, addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to a Responsible Officer
of 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 the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, 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 a Responsible Officer of the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance
upon such waiver.
- 13 -
<PAGE>
Section 1.7. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
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 and
assigns, the Holders of Senior Debt, the Holders of the Securities and, to the
extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2,
the holders of Preferred Securities, 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. NON-BUSINESS DAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be,
- 14 -
<PAGE>
until such next succeeding Business Day except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day (in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity)).
ARTICLE II.
SECURITY FORMS
Section 2.1. FORMS GENERALLY.
The Securities of each series shall be in substantially the forms set forth
in this Article, or in such other form or forms 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 applicable tax
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers 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 with respect to
the authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
- 15 -
<PAGE>
Section 2.2. FORM OF FACE OF SECURITY.
UNITED HEALTHCARE CORPORATION
__% JUNIOR SUBORDINATED DEBENTURE DUE
Registered Principal Amount:
No. CUSIP No.:
United HealthCare Corporation, a corporation organized and existing under
the laws of Minnesota (hereinafter called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________, or registered assigns, the
principal sum of $__________ Dollars on __________; provided that the Company
may [(i) shorten the Stated Maturity of the principal of this Security to a date
not earlier than__________, and (ii) extend the Stated Maturity of the principal
of this Security at any time on one or more occasions,] subject to certain
conditions specified in Section 3.14 of the Indenture, but in no event to a date
later than __________. The Company further promises to pay interest on said
principal sum from __________ or from the most recent interest payment date
(each such date, an "Interest Payment Date") on which interest has been paid or
duly provided for, (subject to deferral as set forth herein) in arrears on the
_____ day of __________ and __________ of each year commencing __________ at the
rate of __________% per annum, until the principal hereof shall have become due
and payable, plus Additional Interest, if any, until the principal hereof is
paid or duly provided for or made available for payment and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the rate of __________% per annum, compounded __________. The amount
of interest payable for any period shall be computed on the basis of twelve
30-day months and a 360-day year. The amount of interest payable for any partial
period shall be computed on the basis of the number of days elapsed in a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on this Security is not a Business Day, then a payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date the payment was originally
payable. A "Business Day" shall mean any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or (iii) a day
on which the Corporate Trust Office of the Trustee, or the principal office of
the Property Trustee under the Trust Agreement (hereinafter referred to) for
[NAME OF TRUST] is closed for business. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the 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 installment, which shall be [INSERT
RECORD DATE] next preceding such Interest Payment Date. Any
- 16 -
<PAGE>
such interest installment not so punctually paid or duly provided for shall
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 __________ 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.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right at any time during the term of this Security to defer
payment of interest on this Security, at any time or from time to time, for up
to __________ consecutive __________ interest payment periods with respect to
each deferral period (each an "EXTENSION PERIOD"), (during which Extension
Periods the Company shall have the right to make partial payments of interest on
any Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law)); PROVIDED, HOWEVER, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Security; PROVIDED, FURTHER, that during any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or distributions or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock (which
includes common and preferred stock), or (ii) make any payment of principal of
or interest or premium, if any, on or repay, repurchase or redeem any debt
security of the Company (including Securities issued by the Company pursuant to
the Indenture other than the Securities represented by this certificate) that
ranks PARI PASSU with or junior in interest to this Security or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiaries of the Company (including UHC Guarantees other
than the UHC Guarantee related to the Preferred Securities issued by [NAME OF
TRUST]) if such guarantee ranks PARI PASSU with or junior in interest to this
Security (other than (a) dividends or distributions in Common Stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the UHC Guarantee related to the Preferred Securities issued
by [NAME OF TRUST], and (d) purchases of Common Stock related to the issuance of
Common Stock or rights under any of the Company's benefit plans for its
directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period, PROVIDED
THAT, such extension does not cause such Extension Period to exceed __________
consecutive interest payment periods or to extend beyond the Stated Maturity.
Upon the termination of any such Extension Period and upon the payment of all
amounts then due, and subject to the foregoing limitation, the Company may elect
to begin a new Extension Period. No interest shall be due and payable during an
Extension Period except at the end thereof. The Company shall give the Trustee,
the Property Trustee and the Administrative Trustees of [NAME OF TRUST] notice
of its election to begin any Extension Period at least __________ Business Days
prior to the earlier of (i) the date on which Distributions on the Preferred
Securities would be payable except for the election to begin such Extension
Period, or (ii) the date the Administrative Trustees are required
- 17 -
<PAGE>
to give notice to any automated quotation system or to holders of such Preferred
Securities of the record date or the date such Distributions are payable, but in
any event not less than __________ Business Days prior to such record date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Securities Register or (ii) by wire
transfer in immediately available funds at such place and to such account as may
be designated by the Person entitled thereto as specified in the Securities
Register.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, unsecured and will rank junior and subordinate and subject in
right of payments to the prior payment in full of all Senior and Subordinated
Debt, and this Security is issued subject to the provisions of the Indenture
with respect thereto. Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior and
Subordinated Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
UNITED HEALTHCARE CORPORATION
By:
-------------------------------------
[President or Vice President]
Attest:
- --------------------------------
- 18 -
<PAGE>
[Secretary or Assistant Secretary]
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 a Junior Subordinated Indenture, dated as of __________ , 1998
(herein called the "INDENTURE"), between the Company and The Bank of New York,
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 Trustee, the
Company 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 $__________.
All terms used in this Security that are defined in the Indenture and in
the Trust Agreement, dated as of ____________________, as amended (the "Trust
Agreement"), for [INSERT NAME OF TRUST] among United HealthCare Corporation, as
Depositor, and the Trustees named therein, shall have the meanings assigned to
them in the Indenture or the Trust Agreement, as the case may be.
[IF APPLICABLE, INSERT--The Company may at any time, at its option, on or
after __________, and subject to the terms and conditions of Article XI of the
Indenture], [IF APPLICABLE, INSERT--redeem this Security [in whole at any time]
[or in part from time to time], without premium or penalty, at a redemption
price equal to [INSERT REDEMPTION PRICE] to the Redemption Date.]
[IF APPLICABLE, INSERT--Upon the occurrence and during the continuation of
a Tax Event or an Investment Company Event in respect of a UHC Trust, the
Company may, at its option, at any time within 90 days of the occurrence of such
Tax Event or Investment Company Event redeem this Security, [IF APPLICABLE,
INSERT--in whole but not in part], subject to the provisions of Section 11.7 and
the other provisions of Article XI of the Indenture, at a redemption price equal
to [INSERT REDEMPTION PRICE] to the Redemption Date.
[IF APPLICABLE, INSERT--In the event of redemption of this Security in part
only, a new Security or Securities of this series for the portion hereof not
redeemed will be issued in the name of the Holder hereof upon the cancellation
hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains
- 19 -
<PAGE>
provisions permitting 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.
[IF THE SECURITY IS NOT A DISCOUNT SECURITY,--As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), PROVIDED that, in the case of the Securities of this series issued
to a UHC Trust, if upon an Event of Default, the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of this series
fails to declare the principal of all the Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee; and upon any such
declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture.]
[IF THE SECURITY IS A DISCOUNT SECURITY,--As provided in and subject to the
provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, in the case of the Securities of this
series issued to a UHC Trust, if upon an Event of Default, the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of this series fails to declare the principal of all the Securities of this
series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities then outstanding shall
have such right by a notice in writing to the Company and the Trustee. Such
amount shall be equal to [INSERT FORMULA FOR DETERMINING THE AMOUNT]. Upon any
such declaration, such amount of the principal of and the accrued interest
(including any Additional Interest) on all the Securities of this series shall
become immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture. Upon
payment (i) of the amount of principal so declared due and payable 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 this Security shall terminate.]
- 20 -
<PAGE>
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. 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.
The Securities of this series are issuable only in registered form without
coupons in denominations of minimum denominations of $[__________] and any
integral multiples of $[__________] in excess 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 such series of a different authorized denomination, as requested by the
Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
Section 2.4. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL SECURITY.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, 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
- 21 -
<PAGE>
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY."
Section 2.5. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Authorized Signatory
ARTICLE III.
THE SECURITIES
Section 3.1. TITLE AND TERMS.
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 set forth in an Officers'
Certificate (such Officers' Certificate shall have the effect of a supplemental
indenture for all purposes hereunder), or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall distinguish the
Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such 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 11.6 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder); PROVIDED, HOWEVER, that the authorized
aggregate principal amount of such series may be increased above such amount by
a Board Resolution to such effect;
- 22 -
<PAGE>
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series shall
bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium, if any) and
interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within or the date or dates on which, if any, the
price or prices at which and the terms and conditions upon which the Securities
of such series may be redeemed, in whole or in part, at the option of the
Company;
(g) the obligation or the right, if any, of the Company to prepay, repay or
purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions, or at the option of a Holder thereof, and
the period or periods within which, the price or prices at which, the currency
or currencies (including currency unit or units) in which and the other terms
and conditions upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $__________ and any integral multiples
of $__________ in excess thereof;
(i) if other than Dollars, the currency or currencies (including currency
unit or units) in which the principal of (and premium, if any) and interest, if
any, on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated;
(j) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to the
Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
- 23 -
<PAGE>
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall
initially be issuable in the form of a temporary Global Security representing
all or such portion of the Securities of such series and provisions for the
exchange of such temporary Global Security for definitive Securities of such
series;
(o) if applicable, that any 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 respective Depositaries for such Global Securities, the form of any legend
or legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 2.4 and any circumstances in addition to or in
lieu of those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of
such series;
(q) the terms of any right to convert or exchange Securities of such series
into any other securities or property of the Company, and the additions or
changes, if any, to this Indenture with respect to the Securities of such series
to permit or facilitate such conversion or exchange;
(r) the form or forms of the Trust Agreement, Amended and Restated Trust
Agreement and Guarantee Agreement, if different from the forms attached hereto
as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not;
(t) any other terms of the Securities of such series (which terms shall not
be inconsistent with the provisions of this Indenture); and
(u) CUSIP numbers.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided herein or in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
If any of the terms of the 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
- 24 -
<PAGE>
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 the series.
The Securities shall be subordinated in right of payment to Senior and
Subordinated Debt as provided in Article XIII.
Section 3.2. DENOMINATIONS.
The Securities of each series shall be in registered form without coupons
and shall be issuable in minimum denominations of $100,000 and integral
multiples of $1,000 in excess thereof, unless otherwise specified as
contemplated by Section 3.1.
Section 3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its President
or one of its Vice Presidents and 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 by 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 conclusively relying upon,
an Opinion of Counsel stating,
(1) 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;
(2) 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
- 25 -
<PAGE>
(3) that such Securities, when authenticated and delivered by a
Responsible Officer of 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
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 a Responsible Officer of the Trustee by the manual signature of one
of its authorized officers, 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 a Responsible Officer of the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities of such series 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.
- 26 -
<PAGE>
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and a Responsible Officer of the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series of authorized denominations having the
same Original Issue Date and Stated Maturity and having the same terms as such
temporary Securities. 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.
Section 3.5. REGISTRATION, TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated for that purpose the Company shall execute,
and a Responsible Officer of 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, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, 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 a Responsible Officer of the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any 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
transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
- 27 -
<PAGE>
No service charge shall be made to a Holder for any 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
transfer or exchange of Securities.
No service charge shall be made to a Holder for any 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
transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act at a time when the Depositary is required to be so
registered to act as depositary, in each case unless the Company has
approved a successor Depositary within 90 days, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global
Security, (C) the Company in its sole discretion determines that such
Global Security will be so exchangeable or transferable or (D) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 3.1.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6 or
11.6 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the opening of business 15 days before
the day of selection for redemption of Securities pursuant to
- 28 -
<PAGE>
Article XI and ending at the close of business on the day of mailing of notice
of redemption or (b) to transfer or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, any portion thereof not to be redeemed.
Section 3.6. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same issue
and series of like tenor and principal amount, having the same Original Issue
Date and Stated Maturity, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to 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
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 upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same issue and
series of like tenor and principal amount, having the same Original Issue Date
and Stated Maturity as such destroyed, lost or stolen Security, 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 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 duly issued hereunder.
The provisions of this Section 3.6 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.
- 29 -
<PAGE>
Interest on any Security of any series 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
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the Board Resolution pursuant to
Section 3.1 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series in respect of
which interest is in default (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to 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 a Security of such series at the address of such
Holder as it appears in the Securities Register not less than 10 days prior
to such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company, cause a similar notice to be
published at least once in a newspaper, customarily published in the
English language on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, but such publication shall not
be a condition precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such
series (or their respective
- 30 -
<PAGE>
Predecessor Securities) are registered 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 in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of the series in respect of
which interest is in default may be listed and, upon such notice as may be
required by such exchange (or by the Trustee if the Securities are not
listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.7, each Security
delivered under this Indenture upon 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.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of 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, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled 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 all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. The Trustee is hereby directed by the Company to
cancel the Securities held by the Trustee (subject to the record retention
requirements of the Exchange Act), and the Trustee shall return such canceled
Securities to the Company.
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 for any period shall be
computed on the basis of a 360-day year of twelve 30-day months and interest on
the Securities of each series for any partial period shall be computed on the
basis of the number of days elapsed in a 360-day year of twelve 30-day months.
Section 3.11. DEFERRALS OF INTEREST PAYMENT DATES.
- 31 -
<PAGE>
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "EXTENSION PERIOD") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period the Company shall
pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law); PROVIDED, HOWEVER, that
no Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities of such series; PROVIDED, FURTHER, that during any such Extension
Period, the Company shall not, and shall not permit any Subsidiary to, (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock (which includes common and preferred stock), or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company (including Securities other than the
Securities of such series) that ranks PARI PASSU with or junior in interest to
the Securities of such series or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the Company
(including UHC Guarantees other than the UHC Guarantee related to the Preferred
Securities issued by the UHC Trust holding Securities of such series) if such
guarantee rank PARI PASSU with or junior in interest to the securities of such
series (other than (a) dividends or distributions in Common Stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the UHC Guarantee related to the Preferred Securities issued
by the UHC Trust holding Securities of such series, and (d) purchases of Common
Stock related to the issuance of Common Stock or rights under any of the
Company's benefit plans for its directors, officers or employees). Prior to the
termination of any such Extension Period, the Company may further extend such
Extension Period, PROVIDED that such extension does not cause such Extension
Period to extend beyond the Stated Maturity of the principal of such Securities.
Upon termination of any Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Trustee, the
Property Trustee and the Administrative Trustees of the UHC Trust holding
Securities of such series notice of its election of any Extension Period (or an
extension thereof) at least five Business Days prior to the earlier of (i) the
next succeeding date on which Distributions on the Preferred Securities of such
UHC Trust would be payable except for the election to begin or extend such
Extension Period or (ii) the date the Administrative Trustees of such UHC Trust
are required to give notice to any automated quotation system or to holders of
such Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than five Business Days prior to such record
date.
- 32 -
<PAGE>
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the Holders of the Outstanding Securities of such
series.
Section 3.12. RIGHT OF SET-OFF.
[RESERVED]
Section 3.13. AGREED TAX TREATMENT.
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Security agree that for
United States Federal, state and local tax purposes it is intended that such
Security constitute indebtedness.
Section 3.14. SHORTENING OR EXTENSION OF STATED MATURITY.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the _____
anniversary of the first Interest Payment Date following the Original Issue Date
of the Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal of the
Securities of such series pursuant to clause (ii) above, at the time such
election is made and at the time of extension (A) the Company is not in
bankruptcy, otherwise insolvent or in liquidation, (B) the Company is not in
default in the payment of any interest or principal on such Securities, (C) in
the case of any series of Securities issued to a UHC Trust, such UHC Trust is
not in arrears on payments of Distributions on the Preferred Securities issued
by such UHC Trust and no deferred Distributions are accumulated and (D) such
Securities are rated not less than BBB- by S&P or Baa3 by Moody's or the
equivalent by any other nationally recognized statistical rating organization.
In the event the Company elects to shorten or extend the Stated Maturity of the
Securities of any series, it shall give notice to the Trustee, and the Trustee
shall give notice of such shortening or extension to the Holders thereof no less
than 30 and no more than 60 days prior to the effectiveness thereof.
Section 3.15. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company shall promptly notify
the Trustee of any change in the CUSIP numbers.
- 33 -
<PAGE>
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 as otherwise provided in this
Section 4.1) and the Trustee, on demand of and 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 10.3) 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 of the date of deposit, 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 Clause (B) (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount in the currency or currencies in which the Securities of
such series are payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest (including any Additional
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
- 34 -
<PAGE>
(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 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 10.3 shall survive such satisfaction and discharge.
Section 4.2. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, 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 premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V.
REMEDIES
Section 5.1 EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to the Securities of
any 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):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it
becomes due and payable, and continuance of such default for a period of 30
days (subject to the deferral of any due date in the case of an Extension
Period); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance of which or the breach of
which is elsewhere in this Section 5.1 specifically dealt with), and
continuance of such default or breach 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 Outstanding
- 35 -
<PAGE>
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied; or
(4) the entry of a decree or order by a court having jurisdiction in
the premises 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 bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of its
property or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it 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 it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit for
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by the Company in furtherance
of any such action; or
(6) any other Event of Default provided with respect to Securities of
that series.
Section 5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in Section
5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), PROVIDED THAT, in the case of
the Securities of a series issued to a UHC Trust, if, upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series fail to declare the principal of all the
Securities of that series to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee; and upon any such declaration such
principal amount (or specified portion thereof) of and the accrued interest
(including any Additional Interest) on all the Securities of such series shall
become immediately due and payable. Payment of principal and interest (including
any Additional Interest) on such Securities shall remain subordinated to the
extent provided in Article XIII notwithstanding that such amount
- 36 -
<PAGE>
shall become immediately due and payable as herein provided. If an Event of
Default specified in Section 5.1(4) or 5.1(5) with respect to Securities of any
series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if the Securities of that series are Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms of that series) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including any
Additional Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which has become due solely by such acceleration, have been cured or waived
as provided in Section 5.13.
In the case of Securities of a series issued to a UHC Trust, the holders of
a majority in aggregate Liquidation Amount (as defined in the Trust Agreement
under which such UHC Trust is formed) of the related series of Preferred
Securities issued by such UHC Trust shall also have the right to rescind and
annul such declaration and its consequences by written notice to the Company and
the Trustee subject to the satisfaction of the conditions set forth in Clauses
(1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
- 37 -
<PAGE>
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 installment of interest
(including any Additional 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 (and premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
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 the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the Securities of
any series shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal (and premium, if any) or
interest (including any Additional Interest)) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
- 38 -
<PAGE>
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing and
unpaid in respect to the Securities and to file such other papers or
documents as may be necessary or advisable and to take any and all actions
as are authorized under the Trust Indenture Act in order to have the claims
of the Holders and any predecessor to the Trustee under Section 6.7 allowed
in any such judicial proceedings; and
(2) 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 in accordance with Section 5.6; and
(b) 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 for distribution in
accordance with Section 5.6, 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 to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 5.5. TRUSTEE MAY ENFORCE CLAIM 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 all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, 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 or property collected or to be applied by the Trustee with
respect to a series of Securities 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 or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
- 39 -
<PAGE>
FIRST: To the payment of all amounts due the Trustee and its agents and
counsel and any predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then due and
unpaid upon such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), 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 series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Company.
Section 5.7. LIMITATION ON SUITS.
No Holder of any Securities 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, assignee, trustee, liquidator, sequestrator (or other
similar official) 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 itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, 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 such Holders.
- 40 -
<PAGE>
Section 5.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST; DIRECT ACTION BY HOLDERS OF PREFERRED SECURITIES.
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 premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated 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 right shall not be impaired without the consent of such
Holder. In the case of Securities of a series issued to a UHC Trust, any holder
of the corresponding series of Preferred Securities issued by such UHC Trust
shall have the right, upon the occurrence of an Event of Default described in
Section 5.1(1) or 5.1(2), to institute a suit directly against the Company for
enforcement of payment to such holder of principal of (premium, if any) and
(subject to Section 3.7) interest (including any Additional Interest) on the
Securities having a principal amount equal to the aggregate Liquidation Amount
(as defined in the Trust Agreement under which such UHC Trust is formed) of such
Preferred Securities of the corresponding series held by such holder.
Section 5.9. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee, any Holder or any holder of Preferred Securities 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, such Holder or such holder of
Preferred Securities, then and in every such case the Company, the Trustee, the
Holders and such holder of Preferred Securities shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, the Holders and the holders of Preferred Securities shall continue as
though no such proceeding had been instituted.
Section 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided 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, any Holder of any Security or any
holder of any Preferred Security 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.
- 41 -
<PAGE>
Every right and remedy given by this Article or by law to the Trustee or to
the Holders and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, 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 such direction if a Responsible Officer or
Officers of the Trustee shall, in good faith, determine that the proceeding
so directed would be unjustly prejudicial to the Holders not joining in any
such direction or 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 and, in the case of any Securities of a
series issued to a UHC Trust, the holders of Preferred Securities issued by such
UHC Trust may waive any past default hereunder and its consequences with respect
to such series except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional 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.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Preferred
Securities issued by such UHC Trust, by all holders of Preferred Securities
issued by such UHC Trust.
- 42 -
<PAGE>
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.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, 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 or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the respective Stated
Maturities expressed in such Security.
Section 5.15. WAIVER OF USURY, 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 usury, 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.
(a) Except during the continuance of an Event of Default;
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this
- 43 -
<PAGE>
Indenture; but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy or mathematical calculations or
other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of Holders pursuant to Section 5.12 relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series.
(d) 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 there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) 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
6.1.
Section 6.2. NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in
- 44 -
<PAGE>
the Securities Register, notice of such default, unless such default shall have
been cured or waived; PROVIDED, HOWEVER, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest (including
any Additional Interest) on any Security of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
PROVIDED, FURTHER, that, in the case of any default of the character specified
in Section 5.1(3), no such notice to Holders of Securities of such series 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 conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, Security or other paper or document (whether in its original or
facsimile form) 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 willful misconduct on its part,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection 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;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to it 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, indenture,
Security or other paper or document, but the Trustee in its discretion
- 45 -
<PAGE>
may make such inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such inquiry or investigation,
it shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the sole expense of the Company and shall
incur no liability or additional liability of any kind by reason of such inquiry
or investigation; 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 neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
Section 6.5. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
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, Securities
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 compensation for all
services rendered by it hereunder in such amounts as the Company and the
Trustee shall agree in writing from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) to reimburse the Trustee upon its request for all expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture
- 46 -
<PAGE>
(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 willful misconduct; and
(3) to fully indemnify the Trustee for, and to hold it harmless
against, any and all losses, liabilities, claims, damages or expenses
(including taxes other than taxes based on the income of the Trustee)
incurred without negligence or willful misconduct, arising out of or in
connection with the acceptance or administration of this trust or the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. This
indemnification shall survive the termination of this Agreement.
To secure the Company's payment obligations in this Section 6.7, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee. Such lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
Section 6.8. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 301(b).
Section 6.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the United
States of America or of any State or Territory or the District of Columbia,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
- 47 -
<PAGE>
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section 6.9, the combined capital and surplus of such
corporation 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
6.9, it shall resign in the manner and with the effect hereinafter
specified in this Article VI. Neither the Company nor any Person directly or
indirectly controlling, controlled by or under common control with the Company
shall serve as Trustee for the Securities of any series issued hereunder.
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 VI shall become effective until the
acceptance of appointment by the successor Trustee under 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 an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition at the expense of the Company 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. The Trustee so removed may petition at the expense of the Company any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(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,
- 48 -
<PAGE>
then, in any such case, (i) the Company, acting pursuant to the authority of 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 with respect to the Securities of
that or those series. 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, become the
successor Trustee with respect to the Securities of such series and 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 hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, subject to Section 5.14, 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 by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. 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.
- 49 -
<PAGE>
(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 rights, powers and trusts referred to in paragraph
(a) or (b) of this Section 6.11, 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 VI.
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 of 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 VI, 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, and in case any
Securities shall not have been
- 50 -
<PAGE>
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor Trustee or in the name of such successor
Trustee, and in all cases the certificate of authentication shall have the full
force which it is provided anywhere in the Securities or in this Indenture that
the certificate of the Trustee shall have.
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 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. 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, or of any State or Territory 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 6.14 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 6.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.14.
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 all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, 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
- 51 -
<PAGE>
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 6.14, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 1.6 to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. 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 provision of this Section 6.14.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14, 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 6.14, 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 referred to in the within mentioned
Indenture.
Dated:
THE BANK OF NEW YORK,
As Trustee
By:
-------------------------------------
As Authenticating Agent
By:
-------------------------------------
Authorized Signatory
Section 6.15. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date of
the case of an
- 52 -
<PAGE>
omission), the Trustee shall have received written instructions in response to
such application specifying the action to be taken or omitted.
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 more than 15 days after January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of January 1 and July 1 of such year, 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 Securities Registrar.
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 Securities
Registrar. 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 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 in 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 agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the 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.
- 53 -
<PAGE>
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than July 15 in each calendar year,
commencing with the first July 15 after the first issuance of Securities under
this Indenture.
(c) 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 and also with the Commission. 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 with 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 in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a). Delivery of such reports, information and documents to the Trustee is
for information purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the corporation 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, partnership or
trust organized and existing under the laws of the United States of America
or any State or the District of Columbia, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (including any
- 54 -
<PAGE>
Additional Interest) on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) 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;
(3) in the case of the Securities of a series issued to a UHC Trust,
such consolidation, merger, conveyance, transfer or lease is permitted
under the related Trust Agreement and related UHC Guarantee and does not
give rise to any breach or violation of the related Trust Agreement or
related UHC Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with; and the Trustee,
subject to Section 6.1, may conclusively rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
Section 8.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; and in the event of any such
conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities and may be
dissolved and liquidated.
Such successor Person 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 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 pursuant to such provisions and
any Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities 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.
- 55 -
<PAGE>
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
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,
PROVIDED, HOWEVER, that the form and terms of Securities of any series may be
established by a Board Resolution, as set forth in the Officers' Certificate
delivered to the Trustee pursuant to Section 3.1, without entering into a
supplemental indenture for all purposes hereunder, 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 contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon
the Company; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 or 3.1; or
(4) 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
(5) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other
- 56 -
<PAGE>
provisions with respect to matters or questions arising under this
Indenture, provided that such action pursuant to this clause (7) shall not
adversely affect the interest of the Holders of Securities of any series in
any material respect or, in the case of the Securities of a series issued
to a UHC Trust and for so long as any of the corresponding series of
Preferred Securities issued by such UHC Trust shall remain outstanding, the
holders of such Preferred Securities; 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 comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
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 each series affected by such
supplemental indenture, 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 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) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change
the Stated Maturity of the principal of, or any installment of interest
(including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or reduce any
premium payable upon the redemption thereof, or reduce the amount of
principal of a Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change the place of payment where, or the coin or currency in
which, any Security 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
- 57 -
<PAGE>
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 10.5, 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 Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner adverse to the Holders thereof;
PROVIDED, FURTHER, that, in the case of the Securities of a series issued to a
UHC Trust, so long as any of the corresponding series of Preferred Securities
issued by such UHC Trust remains outstanding, (i) no such amendment shall be
made that adversely affects the holders of such Preferred Securities in any
material respect, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant under this
Indenture shall be effective, without the prior consent of the holders of at
least a majority of the aggregate liquidation preference of such Preferred
Securities then outstanding unless and until the principal (and premium, if any)
of the Securities of such series and all accrued and, subject to Section 3.7,
unpaid interest (including any Additional Interest) thereon have been paid in
full and (ii) no amendment shall be made to Section 5.8 of this Indenture that
would impair the rights of the holders of Preferred Securities provided therein
without the prior consent of the holders of each Preferred Security then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and (subject to Section 3.7) unpaid
interest (including any Additional Interest) thereon have been paid in full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of the Holders of Securities or holders of
Preferred 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 or holders of Preferred 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 series of Securities created by
any supplemental indenture permitted by this Article or the modifications
thereby of any series of Securities previously 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 Officers' Certificate and an Opinion of
Counsel stating that the
- 58 -
<PAGE>
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent have been complied with. 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 IX or
delivery to the Trustee of the Officers' Certificate pursuant to Section 3.1
hereof (which Officers' Certificate shall have the effect of a supplemental
indenture for all purposes hereunder), 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 IX and every
Officers' Certificate delivered to the trustee pursuant to Section 3.1 hereof
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX or delivery to the Trustee of
the Officers' Certificate pursuant to Section 3.1 hereof (which Officers'
Certificate shall have the effect of a supplemental indenture for all purposes
hereunder) may, and shall if required by the Company, bear a notation in form
approved by the Company as to any matter provided for in such supplemental
indenture or such Officers' Certificate. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture or such Officers's Certificate may
be prepared and executed by the Company and authenticated and delivered by a
Responsible Officer of 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 the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.
- 59 -
<PAGE>
Section 10.2. MAINTENANCE OF OFFICE OR AGENCY.
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 and an office or agency where Securities of that
series may be surrendered for 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 initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of 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 and any change in
the location of any such office or agency.
Section 10.3. MONEY FOR SECURITY 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 (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or 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
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section 10.3, that such
Paying Agent will:
- 60 -
<PAGE>
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest:
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
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 (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Company Request to the Company,
or (if then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) 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 10.4. STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 120 days after the end of
each calendar year of the Company ending after the date hereof, an Officers'
Certificate covering the preceding calendar
- 61 -
<PAGE>
year, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of or
compliance with any of the terms, provisions, covenants and conditions of this
Indenture, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge. For the
purpose of this Section 10.4, compliance shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of this
Indenture.
Section 10.5. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any covenant
or condition provided pursuant to Sections 3.1, 9.1(3), or 9.1(4) with respect
to the Securities of any series, if before or after 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 covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company in respect of any such covenant
or condition shall remain in full force and effect.
Section 10.6. ADDITIONAL SUMS.
In the case of the Securities of a series issued to a UHC Trust, so long as
no Event of Default has occurred and is continuing and except as otherwise
specified as contemplated by Section 2.1 or Section 3.1, in the event that (i)
such UHC Trust is the Holder of all of the Outstanding Securities of such
series, (ii) a Tax Event in respect of such UHC Trust shall have occurred and be
continuing and (iii) the Company shall not have (A) redeemed the Securities of
such series pursuant to Section 11.7(b) or (B) terminated such UHC Trust
pursuant to Section 9.2(b) of the related Trust Agreement, the Company shall pay
to such UHC Trust (and its permitted successors or assigns under the related
Trust Agreement) for so long as such UHC Trust (or its permitted successor or
assignee) is the registered holder of any Securities of such series, such
additional amounts as may be necessary in order that the amount of Distributions
(including any Additional Amounts (as defined in such Trust Agreement)) then due
and payable by such UHC Trust on the related Preferred Securities and Common
Securities that at any time remain outstanding in accordance with the terms
thereof shall not be reduced as a result of any Additional Taxes (the
"ADDITIONAL SUMS"). Whenever in this Indenture or the Securities there is a
reference in any context to the payment of principal of or interest on the
Securities, such mention shall be deemed to include mention of the payments of
the Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; PROVIDED, HOWEVER, that the deferral of the payment
of interest pursuant to Section 3.11 or the Securities shall not defer the
payment of any Additional Sums that may be due and payable.
- 62 -
<PAGE>
Section 10.7. ADDITIONAL COVENANTS.
The Company covenants and agrees with each Holder of Securities of any
series that it shall not, and it shall not permit any Subsidiary of the Company
to, (a) declare or pay any dividends or distributions on, or redeem purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock (which includes common and preferred stock), or (b) make
any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company (including Securities
other than the Securities of such series) that rank PARI PASSU with or junior in
interest to the Securities of such series or make any guarantee payments with
respect to any guarantee by the Company of debt securities of any subsidiary of
the Company (including UHC Guarantees other than the UHC Guarantee related to
the Preferred Securities issued by the UHC Trust holding Securities of such
series) if such guarantee ranks PARI PASSU with or junior in interest to the
Securities (other than (a) dividends or distributions in Common Stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a rights plan or the issuance of stock under any such plan or the redemption
or repurchase of any such rights pursuant thereto, (c) payments under the UHC
Guarantee related to the Preferred Securities issued by the UHC Trust holding
Securities of such series, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company's benefit plans for
its directors, officers or employees) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that (A) with the
giving of notice or the lapse of time or both, would constitute an Event of
Default with respect to the Securities of such series and (B) in respect of
which the Company shall not have taken reasonable steps to cure, (ii) if the
Securities of such series are held by a UHC Trust, the Company shall be in
default with respect to its payment of any obligations under the UHC Guarantee
relating to the Preferred Securities issued by such UHC Trust or (iii) the
Company shall have given notice of its election to begin an Extension Period
with respect to the Securities of such series as provided herein and shall not
have rescinded such notice, or such Extension Period, or any extension thereof,
shall be continuing.
The Company also covenants with each Holder of Securities of a series
issued to a UHC Trust (i) to maintain directly or indirectly 100% ownership of
the Common Securities of such UHC Trust; PROVIDED, HOWEVER, that any permitted
successor of the Company hereunder may succeed to the Company's ownership of
such Common Securities, (ii) not to voluntarily terminate, wind-up or liquidate
such UHC Trust, except (a) in connection with a distribution of the Securities
of such series to the holders of Trust Securities in liquidation of such UHC
Trust or (b) in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust Agreement, to
cause such UHC Trust to remain classified as a grantor trust and not an
association taxable as a corporation for United States federal income tax
purposes.
Section 10.8. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual
- 63 -
<PAGE>
periods) accrued on Outstanding Securities as of the end of such year and (ii)
such other specific information relating to such original issue discount as may
then be relevant under the Internal Revenue Code of 1986, as amended from time
to time.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.1. APPLICABILITY OF THIS ARTICLE.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of such series shall be
subject to partial redemption only in the amount of $100,000 or, in the case of
the Securities of a series issued to a UHC Trust, $100,000, or integral
multiples of $1,000 in excess thereof.
Section 11.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any particular series and
having the same terms, the Company shall, not less than 30 nor more than 60 days
prior to the Redemption Date, notify the Trustee of such date and of the
principal amount of Securities of that series 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, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
Section 11.3. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), 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 a
portion of the principal amount of any Security of such series, provided that
the portion of the principal amount of any Security not redeemed shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), 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
- 64 -
<PAGE>
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 partial redemption and 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 Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.
Section 11.4. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of such particular series and
having the same terms are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the case; and
(g) applicable CUSIP numbers.
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 not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of
- 65 -
<PAGE>
any Security designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security.
Section 11.5. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.
Section 11.6. PAYMENT OF SECURITIES CALLED FOR REDEMPTION.
If any notice of redemption has been given as provided in Section 11.4, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price. On presentation and surrender
of such Securities at a Place of Payment in said notice specified, the said
securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable Redemption Price, together with accrued interest
(including any Additional 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 will 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.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the portion of
the Security not redeemed so presented and having the same Original Issue Date,
Stated Maturity and terms. If a Global Security is so surrendered, such new
Security will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 11.7. RIGHT OF REDEMPTION OF SECURITIES INITIALLY ISSUED TO A UHC
TRUST.
In the case of the Securities of a series initially issued to a UHC Trust,
except as otherwise specified as contemplated by Section 3.1, the Company, at
its option, may redeem such Securities (i) on or after the date five years after
the Original Issue Date of such Securities, in whole at any time or in part from
time to time, or (ii) upon the occurrence and during the continuation of a Tax
Event
- 66 -
<PAGE>
or Investment Company Event, at any time within 90 days following the occurrence
of such Tax Event or Investment Company Event in respect of such UHC Trust, in
whole (but not in part), in each case at a Redemption Price equal to 100% of the
principal amount thereof.
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 any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any sinking fund payment in excess of such minimum amount which is
permitted to be made by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the terms
of any 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 such Securities.
Section 12.2. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 30 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, 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 60 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
- 67 -
<PAGE>
Securities of such series are payable (except as provided pursuant to Section
3.1) and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the
Trustee any Securities to be so delivered. Such Officers' Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure of the Company
to deliver such Officers' Certificate (or, as required by this Indenture, the
Securities and coupons, if any, specified in such Officers' Certificate), the
sinking fund payment due on the succeeding sinking fund payment date for such
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of the Securities of such series subject to a mandatory sinking
fund payment without the right to deliver or credit securities as provided in
Section 12.2 and without the right to make the optional sinking fund payment
with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee
(or, if the Company is acting as its own Paying Agent, segregated and held in
trust by the Company as provided in Section 10.3) for such series and together
with such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 12.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 10.3) on the last sinking fund payment date with respect to
Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity. The Trustee 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 Section 11.6. On or before each sinking fund payment
date, the Company shall pay to the Trustee (or, if the Company is acting as its
own Paying Agent, the Company shall segregate and hold in trust as provided in
Section 10.3) in cash a sum in the currency in which Securities of such series
are payable (except as provided pursuant to Section 3.1) equal to the principal
and any interest accrued to the Redemption Date for Securities or portions
thereof to be redeemed on such sinking fund payment date pursuant to this
Section 12.3.
Neither the Trustee nor the Company shall redeem any Securities of a series
with sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking
- 68 -
<PAGE>
fund for such series during the continuance of a default in payment of interest,
if any, on any Securities of such series or of any Event of Default (other than
an Event of Default occurring as a consequence of this paragraph) with respect
to the Securities of such series, except that if the notice of redemption shall
have been provided in accordance with the provisions hereof, the Trustee (or the
Company, if the Company is then acting as its own Paying Agent) shall redeem
such Securities if cash sufficient for that purpose shall be deposited with the
Trustee (or segregated by the Company) for that purpose in accordance with the
terms of this Article XII. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of Default shall
occur and any moneys thereafter paid into such sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of the Securities and coupons, if any, of such series; provided,
however, that in case such default or Event of Default shall have been cured or
waived herein, such moneys shall thereafter be applied on the next sinking fund
payment date for the Securities of such series on which such moneys may be
applied pursuant to the provisions of this Section 12.3.
ARTICLE XIII.
SUBORDINATION OF SECURITIES
Section 13.1. SECURITIES SUBORDINATE TO SENIOR AND SUBORDINATED DEBT.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article XIII, the payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
amounts then due and payable in respect of all Senior and Subordinated Debt.
Section 13.2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company (each such event, if any, herein
sometimes referred to as a "Proceeding"), then the holders of Senior and
Subordinated Debt shall be entitled to receive payment in full of Allocable
Amounts of such Senior and Subordinated Debt, or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior and Subordinated Debt, before the Holders of the
Securities are entitled to receive or retain any payment or distribution of any
kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other Debt of the Company subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred to as a
"Junior Subordinated Payment"), on account of principal of (or premium, if any)
or interest (including any Additional Interest) on the Securities or on account
of the purchase or other acquisition of Securities by the Company or any
Subsidiary and to that end the holders of Senior and Subordinated Debt shall be
entitled to receive, for application to the payment thereof, any payment
- 69 -
<PAGE>
or distribution of any kind or character, whether in cash, property or
securities, including any Junior Subordinated Payment, which may be payable or
deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this Section
13.2, the Trustee or the 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, including any Junior Subordinated Payment, before
all Allocable Amounts of all Senior and Subordinated Debt are paid in full or
payment thereof is provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior and Subordinated Debt, 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 Allocable Amounts of all Senior and
Subordinated Debt remaining unpaid, to the extent necessary to pay all Allocable
Amounts of all Senior and Subordinated Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior and
Subordinated Debt.
For purposes of this Article XIII only, the words "any payment or
distribution of any kind or character, whether in 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 securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Securities are so subordinated as provided in this Article XIII.
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 of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article VIII shall not
be deemed a Proceeding for the purposes of this Section 13.2 if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by sale such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
Section 13.3. PRIOR PAYMENT TO SENIOR AND SUBORDINATED DEBT UPON
ACCELERATION OF SECURITIES.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior and
Subordinated Debt outstanding at the time such Securities so become due and
payable shall be entitled to receive payment in full of all Allocable Amounts
due on or in respect of such Senior and Subordinated Debt (including any amounts
due upon acceleration), or provision shall be made for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
and Subordinated Debt, before the Holders of the Securities are entitled to
receive any payment or distribution of any kind or character,
- 70 -
<PAGE>
whether in cash, properties or securities (including any Junior Subordinated
Payment) by the Company on account of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any
Subsidiary; PROVIDED, HOWEVER, that nothing in this Section 13.3 shall prevent
the satisfaction of any sinking fund payment in accordance with this Indenture
or as otherwise specified as contemplated by Section 3.1 for the Securities of
any series by delivering and crediting pursuant to Section 12.2 or as otherwise
specified as contemplated by Section 3.1 for the Securities of any series
Securities 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 prohibited by the
foregoing provisions of this Section 13.3, 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 13.3 shall not apply to any payment with
respect to which Section 13.2 would be applicable.
Section 13.4. NO PAYMENT WHEN SENIOR AND SUBORDINATED DEBT 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 and Subordinated
Debt, or in the event that any event of default with respect to any Senior and
Subordinated Debt shall have occurred and be continuing and shall have resulted
in such Senior and Subordinated Debt becoming or being declared 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 such event or default, then no payment
or distribution of any kind or character, whether in cash, properties or
securities (including any Junior Subordinated Payment) shall be made by the
Company on account of principal of (or premium, if any) or interest (including
any Additional Interest), if any, on the Securities or on account of the
purchase or other acquisition of Securities by the Company or any Subsidiary, in
each case unless and until all Allocable Amounts of such Senior Debt are paid in
full; PROVIDED, HOWEVER, that nothing in this Section 13.4 shall prevent the
satisfaction of any sinking fund payment in accordance with this Indenture or as
otherwise specified as contemplated by Section 3.1 for the Securities of any
series by delivering and crediting pursuant to Section 12.2 or as otherwise
specified as contemplated by Section 3.1 for the Securities of any series
Securities 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 prohibited by the
foregoing provisions of this Section 13.4, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or,
- 71 -
<PAGE>
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 13.4 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 XIII or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 13.2 or under the
conditions described in Sections 13.3 and 13.4, from making payments at any time
of principal of (and premium, if any) or interest (including Additional
Interest) on the Securities, 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 (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, 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 XIII.
Section 13.6. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all amounts due or to become due on all
Senior and Subordinated Debt, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior and
Subordinated Debt, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior and
Subordinated Debt pursuant to the provisions of this Article XIII (equally and
ratably with the holders of all indebtedness of the Company which by its express
terms is subordinated to Senior and Subordinated Debt of the Company to
substantially the same extent as the Securities are subordinated to the Senior
and Subordinated Debt and is entitled to like rights of subrogation by reason of
any payments or distributions made to holders of such Senior and Subordinated
Debt) to the rights of the holders of such Senior and Subordinated Debt to
receive payments and distributions of cash, property and securities applicable
to the Senior and Subordinated Debt until the principal of (and premium, if any)
and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior and
Subordinated Debt of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article
XIII to the holders of Senior and Subordinated Debt by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior and Subordinated Debt, and the Holders of the Securities, be deemed to be
a payment or distribution by the Company to or on account of the Senior and
Subordinated Debt.
Section 13.7. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
- 72 -
<PAGE>
The provisions of this Article XIII 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 and Subordinated Debt on the other hand.
Nothing contained in this Article XIII or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as between the Company and the
Holders of the Securities, the obligations of the Company, which are absolute
and unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including any Additional Interest) on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than their rights
in relation to the holders of Senior and Subordinated Debt; 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 including, without
limitation, filing and voting claims in any Proceeding, subject to the rights,
if any, under this Article XIII of the holders of Senior and Subordinated Debt
to receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 13.8. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article XIII and appoints the Trustee his or her 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 and Subordinated
Debt 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
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior and Subordinated Debt may, at any time and from
to time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
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 and Subordinated Debt, 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 and Subordinated Debt, or otherwise amend or supplement in any
manner Senior and Subordinated Debt or any instrument evidencing the same or any
agreement under which Senior and Subordinated Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior and Subordinated Debt; (iii) release any Person liable
in any manner for the
- 73 -
<PAGE>
collection of Senior and Subordinated Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 13.10. NOTICE TO TRUSTEE.
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 to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article XIII 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 to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior and Subordinated Debt or from any trustee, agent
or representative therefor; provided, however, that if the Trustee shall not
have received the notice provided for in this Section 13.10 at least two
Business Days prior to the date upon which by the terms hereof any monies may
become payable for any purpose (including, without limitation, the payment of
the principal of (and premium, if any) or interest (including any Additional
Interest) on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were 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 and Subordinated Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior and Subordinated
Debt (or a trustee therefor). 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 and Subordinated Debt 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 and Subordinated Debt 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 to such Person
pending judicial determination as to the right of such Person to receive such
payment.
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 XIII, the Trustee, subject to the provisions of Section 6.1, and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such 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, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior and
Subordinated Debt and other indebtedness of the Company, the amount thereof or
payable thereon,
- 74 -
<PAGE>
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XIII.
Section 13.12. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR AND SUBORDINATED
DEBT.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior and Subordinated Debt
and shall not be liable to any such holders if it shall in good faith mistakenly
pay over or distribute to Holders of Securities or to the Company or to any
other Person cash, property or securities to which any holders of Senior and
Subordinated Debt shall be entitled by virtue of this Article or otherwise. With
respect to the holders of Senior and Subordinated Debt, the Trustee undertakes
to perform or observe only such of its covenants and obligations as are set
forth in this Article and no implied covenants or obligations with respect to
holders of Senior and Subordinated Debt shall be read into this Indenture
against the Trustee.
Section 13.13. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR AND SUBORDINATED DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XIII with respect to any Senior and Subordinated Debt
which may at any time be held by it, to the same extent as any other holder of
Senior and Subordinated Debt, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
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 XIII 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 XIII in addition to or in place of the Trustee.
Section 13.15. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For the purposes of this Article XIII only, (a) the issuance and delivery
of junior securities upon conversion or exchange of Securities shall not be
deemed to constitute a payment or distribution on account of the principal of
(or premium, if any) or interest (including any Additional Interest) on
Securities or on account of the purchase or other acquisition of Securities, and
(b) the payment, issuance or delivery of cash, property or securities (other
than junior securities) upon conversion or exchange of a Security shall be
deemed to constitute payment on account of the principal of such security. For
the purposes of this Section 13.15, the term "junior securities" means (i)
shares of any stock of any class of the Company and (ii) securities of the
Company which are subordinated in right of payment to all Senior and
Subordinated Debt which may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article XIII.
* * * *
- 75 -
<PAGE>
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.
- 76 -
<PAGE>
****
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
UNITED HEALTHCARE CORPORATION,
By:
-----------------------------------
Allan J. Weiss, Vice President
and Treasurer
Attest:
By
----------------------------------
David J. Lubben, Secretary
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------
Its:
-----------------------------------
- 77 -
<PAGE>
Exhibit 4.12
AMENDED AND RESTATED
TRUST AGREEMENT
among
UNITED HEALTHCARE CORPORATION, as Depositor,
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ____________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE I. DEFINED TERMS
Section 1.1. Definitions....................................................................1
ARTICLE II. CONTINUATION OF THE TRUST
Section 2.1. Name...........................................................................9
Section 2.2. Office of the Delaware Trustee; Principal Place of Business...................10
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses...............10
Section 2.4. Issuance of the Preferred Securities..........................................10
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Debentures....10
Section 2.6. Purposes; Declaration of Trust................................................11
Section 2.7. Authorization to Enter into Certain Transactions..............................11
Section 2.8. Assets of Trust...............................................................15
Section 2.9. Title to Trust Property.......................................................15
ARTICLE III. PAYMENT ACCOUNT
Section 3.1. Payment Account...............................................................15
ARTICLE IV. DISTRIBUTIONS; REDEMPTION
Section 4.1. Distributions.................................................................15
Section 4.2. Redemption....................................................................16
Section 4.3. Subordination of Common Securities............................................18
Section 4.4. Payment Procedures............................................................19
Section 4.5. Tax Returns and Reports.......................................................19
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust...................................19
Section 4.7. Reduction for Payments under Indenture or Pursuant to Direct Actions..........20
ARTICLE V. TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.............................................................20
Section 5.2. The Trust Securities Certificates.............................................20
Section 5.3. Execution and Delivery of Trust Securities Certificates.......................20
Section 5.4. Registration of Transfer and Exchange of Preferred Securities Certificates....21
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............21
Section 5.6. Persons Deemed Holders........................................................22
Section 5.7. Access to List of Holders' Names and Addresses................................22
Section 5.8. Maintenance of Office or Agency...............................................23
Section 5.9. Appointment of Paying Agent...................................................23
Section 5.10. Ownership of Common Securities by Depositor...................................23
Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities Certificate...24
Section 5.12. Notices to Clearing Agency....................................................25
Section 5.13. Issuance of Definitive Preferred Securities Certificates......................25
</TABLE>
<PAGE>
Section 5.14. Rights of Holders..............................................25
ARTICLE VI. ACTS OF HOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights....................................27
Section 6.2. Notice of Meetings..............................................28
Section 6.3. Meetings of Holders of Preferred Securities.....................29
Section 6.4. Voting Rights...................................................29
Section 6.5. Proxies, etc....................................................29
Section 6.6. Action by Written Consent.......................................30
Section 6.7. Record Date for Voting and Other Purposes.......................30
Section 6.8. Acts of Holders.................................................30
Section 6.9. Inspection of Records...........................................31
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee........................................31
Section 7.2. Representations and Warranties of Depositor.....................33
ARTICLE VIII. THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.............................33
Section 8.2. Certain Notices.................................................35
Section 8.3. Certain Rights of Property Trustee..............................35
Section 8.4. Not Responsible for Recitals or Issuance of Securities..........37
Section 8.5. May Hold Securities.............................................37
Section 8.6. Compensation; Indemnity; Fees...................................37
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees....38
Section 8.8. Conflicting Interests...........................................39
Section 8.9. Co-Trustees and Separate Trustee................................39
Section 8.10. Resignation and Removal; Appointment of Successor...............40
Section 8.11. Acceptance of Appointment by Successor..........................42
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.....43
Section 8.13. Preferential Collection of Claims Against Depositor or Trust....43
Section 8.14. Reports by Property Trustee.....................................44
Section 8.15. Reports to the Property Trustee.................................44
Section 8.16. Evidence of Compliance with Conditions Precedent................44
Section 8.17. Number of Trustees..............................................45
Section 8.18. Delegation of Power.............................................45
ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination Upon Expiration Date................................45
Section 9.2. Early Termination...............................................46
Section 9.3. Termination.....................................................46
Section 9.4. Liquidation.....................................................46
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust..........48
ARTICLE X. MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Holders..............................................49
Section 10.2. Amendment....................................................................49
Section 10.3. Separability.................................................................50
Section 10.4. Governing Law................................................................50
Section 10.5. Payments Due on Non-Business Day.............................................50
Section 10.6. Successors...................................................................51
Section 10.7. Headings.....................................................................51
Section 10.8. Reports, Notices and Demands.................................................51
Section 10.9. Agreement Not to Petition....................................................52
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.......................52
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture..............52
Section 10.12. Counterparts.................................................................53
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
FORM OF ASSIGNMENT
</TABLE>
<PAGE>
[TRUSTS]
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
(ss.) 310(a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(b) 8.8
(ss.) 311(a) 8.13
(b) 8.13
(ss.) 312(a) 5.7
(b) 5.7
(c) 5.7
(ss.) 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 10.8
(d) 8.14(c)
(ss.) 314(a) 8.15
(b) Not Applicable
(c)(1) 8.16
<PAGE>
(c)(2) 8.16
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.1, 8.16
(ss.) 315(a) 8.1(a), 8.3(a)
(b) 8.2, 10.8
(c) 8.1(a)
(d) 8.1, 8.3
(e) Not Applicable
(ss.) 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) 5.14
(c) 6.7
(ss.) 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.9
(ss.) 318(a) 10.10
- ----------------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
- ii -
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of __________,
among (i) UNITED HEALTHCARE CORPORATION, a Minnesota corporation (including any
successors or assigns, the "Depositor"), (ii) The Bank of New York, a New York
banking corporation, as property trustee, (the "Property Trustee"), (iii) The
Bank of New York (Delaware), as Delaware trustee (the "Delaware Trustee"), (iv)
Arnold Kaplan, an individual, David J. Lubben, an individual, and Allan Weiss,
an individual, each of whose address is c/o United HealthCare Corporation, 300
Opus Center, 990 Bren Road East, Minnetonka, Minnesota 55343 (each an
"Administrative Trustee" and collectively the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH
WHEREAS, the Depositor, the Administrative Trustees and the
Delaware Trustee have heretofore duly declared and established a business trust
pursuant to the Delaware Business Trust Act by the entering into that certain
Trust Agreement, dated as of October 20, 1998, (the "Original Trust Agreement"),
and by the execution and filing by the Property Trustee and the Delaware Trustee
with the Secretary of State of the State of Delaware of the Certificate of
Trust, filed on October 20, 1998, in the form attached as Exhibit A hereto; and
WHEREAS, the Depositor and the Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Trust to the Depositor, (ii) the issuance and sale of the Preferred
Securities, as hereinafter defined, by the Trust pursuant to the Underwriting
Agreement, (iii) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures and (iv) the appointment of the
Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means a Person satisfying the eligibility
requirements set forth in Section 8.7(b) and initially means each of the Persons
identified as an "Administrative Trustee" in the preamble to this Trust
Agreement solely in such Person's capacity as Administrative Trustee of the
Trust formed and continued hereunder and not in such Person's individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"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.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Bankruptcy Law,
or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of such Person or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60 consecutive
days; or
- 2 -
<PAGE>
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Bankruptcy Law,
or the consent by it to the filing of any such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Law" means any Federal or State bankruptcy, insolvency,
reorganization or similar law.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Certificate of Trust" means the Certificate of Trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act and initially means The
Depository Trust Company.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
- 3 -
<PAGE>
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $_____ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in
Newark, Delaware, and (ii) when used with respect to the Debenture Trustee, the
principal office of the Debenture Trustee located in Newark, Delaware.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means The Bank of New York , a New York banking
corporation organized under the laws of the State of Delaware, and any successor
thereto under the Indenture.
"Debentures" means the aggregate principal amount of the Depositor's
__________% Junior Subordinated Deferrable Interest Debentures, issued pursuant
to the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (a) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificate as provided in Section 5.11(a) and
(b) Preferred Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
- 4 -
<PAGE>
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" 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) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a period
of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and The Bank of New York , as guarantee trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
Holders, as amended from time to time.
- 5 -
<PAGE>
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of
__________, between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture the proceeds of which will be used to pay the Redemption Price of such
Trust Securities, and (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Trust, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $__________ per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
- 6 -
<PAGE>
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding"when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that, if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu
of which other Preferred Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that a Responsible Officer of such Trustee
actually knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any such Affiliate.
Preferred Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
- 7 -
<PAGE>
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and initially means ________.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with ________ in its trust
department for the benefit of the Holders in which all amounts paid in respect
of the Debentures will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Holders in accordance with Sections 4.1
and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Securities" means the __________% Preferred Securities of
the Trust.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
E hereto.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Responsible Officer", shall mean, when used with respect to the
Property Trustee, any officer within the corporate trust department of the
Property Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of
the Property Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Trust Agreement.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
- 8 -
<PAGE>
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"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.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the __________, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE II.
CONTINUATION OF THE TRUST
Section 2.1. Name.
The Trust continued hereby shall be known as "__________," as such name
may be modified from time to time by the Administrative Trustees following
written notice to the Holders and the other Trustees, in which name the Trustees
may conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
- 9 -
<PAGE>
Section 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is c/o The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attention: Corporate Trust Administrator, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Holders and the Depositor. The principal executive office of the Trust is c/o
United HealthCare Corporation, 300 Opus Center, 9900 Bren Road East, Minnetonka,
Minnesota 55343
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.4. Issuance of the Preferred Securities.
On __________ the Depositor individually and on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Underwriters named in
the Underwriting Agreement Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of
__________ Preferred Securities having an aggregate Liquidation Amount of
$__________, against receipt of such aggregate purchase price of such Preferred
Securities of $__________, which amount the Administrative Trustee shall
promptly deliver to the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
__________ Common Securities having an aggregate Liquidation Amount of
$__________ against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount equal to $__________,
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$__________ (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence
of this Section 2.5).
- 10 -
<PAGE>
Section 2.6. Purposes; Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Trust and the Holders.
The Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees under this
Trust Agreement, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities,
including execution of any agreements, certificates evidencing
Trust Securities or other documents necessary or advisable
with respect to such issuance and sale;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository Agreement and such
other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, as the same may be
decreed necessary or advisable, and the qualification of this
Trust Agreement as a trust indenture under the Trust Indenture
Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration
- 11 -
<PAGE>
of the Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Holders in accordance with this
Trust Agreement;
(F) the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
(G) registering transfer of the Trust Securities in
accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(I) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees have
the power to execute pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the
foregoing as is necessary or advisable to give effect to the
terms of this Trust Agreement for the benefit of the Holders
(without consideration of the effect of any such action on any
particular Holder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Holders in respect of the Trust
Securities;
- 12 -
<PAGE>
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Holders in accordance with the express terms of this
Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing
as is necessary or advisable to give effect to the terms of
this Trust Agreement and protect and conserve the Trust
Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
(J) so long as the Property Trustee is the Securities
Registrar, registering transfers of the Trust Securities in
accordance with this Trust Agreement; and
(K) except as otherwise provided in this Section
2.7(a)(ii) or as required by the Trust Indenture Act, the
Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set
forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Holders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a "grantor trust" for United States Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt or (v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Administrative Trustees shall defend
all claims and demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Trust or the Holders in their
capacity as Holders.
- 13 -
<PAGE>
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or fail to be classified
as a grantor trust for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that each of
the Depositor and any Administrative Trustee determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the
Preferred Securities.
- 14 -
<PAGE>
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Holders in accordance
with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Holders and for distribution as herein provided,
including (and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
Section 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from _________, and, except in the event (and to the extent) that the
- 15 -
<PAGE>
Depositor exercises its right to defer the payment of interest on the
Debentures pursuant to the Indenture, shall be payable __________ in
arrears on the _________ day of _________________ and _________ of each
year, commencing on _________. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then
the payment of such Distribution shall be made on the next succeeding
day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Distribution shall
be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming payments of interest on the Debentures are made
when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at
a rate of _____% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period
shall be computed on the basis of a 360-day year of twelve 30-day
months. The amount of Distributions for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year
of twelve 30-day months. The amount of Distributions payable for any
period shall include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with
respect to a Distribution Date shall be payable to the Holders
thereof as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be
one Business Day prior to such Distribution Date; provided,
however, that in the event that the Preferred Securities do
not remain in book-entry-only form, the relevant record date
shall be the date 15 days prior to the relevant Distribution
Date.
Section 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee 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 Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
- 16 -
<PAGE>
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, so long
as the Preferred Securities are in book-entry-only form, irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
If the Preferred Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Register
for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of Holders
holding Trust Securities so called for redemption will cease, except the right
of such Holders to receive the Redemption Price and any Distribution payable on
or prior to the Redemption Date, but without interest, and such Securities will
cease to be outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accrue, at the then applicable rate, from the Redemption
- 17 -
<PAGE>
Date originally established by the Trust for such Trust Securities to the date
such Redemption Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating the Redemption
Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be one Business
Day prior to the relevant Redemption Date; provided, however, that in the event
that the Preferred Securities do not remain in book-entry-only form, the
relevant record date shall be the date fifteen days prior to the relevant
Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $_____ or an integral multiple of $_____ in excess
thereof) of the Liquidation Amount of Preferred Securities of a denomination
larger than $_____ . The Property Trustee shall promptly notify the Security
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(f), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all
- 18 -
<PAGE>
Distributions (including Additional Amounts, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holder of Common Securities will be
deemed to have waived any right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holders of the Common Securities, and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable Distribution Dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed upon
in writing between the Property Trustee and the Holder of the Common Securities.
Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States Federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
each Holder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Administrative Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums and directions as
to the payments of such Additional Sums, the Property Trustee shall promptly
pay, solely out of monies on deposit pursuant to this Trust Agreement, any
taxes, duties or governmental charges of whatsoever nature
- 19 -
<PAGE>
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
Section 4.7. Reduction for Payments under Indenture or Pursuant to
Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities (and
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (and Owner) has directly received pursuant to
Section 5.8 of the Indenture or Section 5.14 of this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
Section 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $___ Liquidation Amount and integral multiples of $___ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $___ Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Holder, and shall be entitled to the rights and subject to the obligations of a
Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee's name pursuant to Sections 5.4, 5.11 and 5.13.
Section 5.3. Execution, Delivery and Authentication of Trust
Securities Certificates.
(a) At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust by an Administrative
Trustee and delivered to or upon the written order of the Depositor, signed by
its chairman of the board, its president, any executive vice president or any
vice president,
- 20 -
<PAGE>
treasurer or assistant treasurer or controller without further corporate action
by the Depositor, in authorized denominations.
(b) The Property Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Trust Securities of the series designated therein
and issued pursuant to the within-mentioned Trust Agreement.
Dated:______________________
The Bank of New York, as Trustee
By:_____________________________
Authorized Signatory
Section 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. ________ shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required to register the transfer
of any Preferred Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations of the same class
and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by an Administrative Trustee in accordance with such Person's customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction,
- 21 -
<PAGE>
loss or theft of any Trust Securities Certificate and (b) there shall be
delivered to the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Trust Securities Certificate shall have
been acquired by a protected purchaser, the Administrative Trustees, or any one
of them, on behalf of the Trust shall execute and make available for delivery,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Administrative Trustees or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an undivided beneficial interest in the Trust
Property, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 5.6. Persons Deemed Holders.
The Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
Section 5.7. Access to List of Holders' Names and Addresses.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Depositor shall furnish
or cause to be furnished to the Property Trustee (a) semi-annually not later
than five days after January 1 and July 1 in each year, and (b) promptly after
receipt by an Administrative Trustee or the Depositor of a request therefor from
the Property Trustee in writing, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the Holders as of the most
recent record date, in each case to the extent such information is in the
possession or control of the Administrative Trustees or the Depositor and is not
identical to a previously supplied list or has not otherwise been received by
the Property Trustee in its capacity as Securities Registrar. The rights of
Holders to communicate with other Holders with respect to their rights under
this Trust Agreement or under the Trust Securities, and the corresponding
obligations and rights of the Property Trustee, shall be as provided in the
Trust Indenture Act.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee or the Administrative Trustees accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
- 22 -
<PAGE>
Section 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be served.
The Administrative Trustees initially designate United HealthCare Corporation,
300 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343 Attn:
Treasurer, as its principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and to
the Holders of any change in the location of the Securities Register or any such
office or agency.
Section 5.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Administrative Trustees
determine in their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Trust Agreement in any material respect. The
Paying Agent shall initially be ________, and any co-paying agent chosen by
________, and acceptable to the Administrative Trustees and the Depositor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees, the Property Trustee and
the Depositor. In the event that ________ shall no longer be the Paying Agent or
a successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Holders in trust for the benefit of
the Holders entitled thereto until such sums shall be paid to such Holders. The
Paying Agent shall return all unclaimed funds to the Property Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6
herein shall apply to ________ also in its role as Paying Agent, for so long as
________ shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.10. Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, other than a transfer in connection
- 23 -
<PAGE>
with a consolidation or merger of the Depositor into another Person, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, any attempted transfer of the Common Securities shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE"
except as set forth in this Section 5.10.
Section 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will
be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to the initial Clearing Agency, by, or on behalf of, the Trust. Such
Preferred Securities Certificate or Certificates shall initially be registered
on the Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive Preferred Securities
Certificate representing such Owner's interest in such Preferred Securities,
except as provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Preferred Securities to such Clearing
Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
- 24 -
<PAGE>
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Issuance of Definitive Preferred Securities
Certificates.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing beneficial
interests aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustees in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Owners of
Preferred Securities Certificates, then the Administrative Trustee shall notify
the Clearing Agency and the Clearing Agency shall notify all Owners of Preferred
Securities Certificates and the other Trustees of the occurrence of any such
event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Administrative Trustees of the Preferred Securities
Certificate or Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with the instructions
of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be fully protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Holders. The Definitive Preferred Securities Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.
Section 5.14. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the Trust Property conferred by their Trust Securities
and they shall have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically set forth therein
and in this Trust Agreement. The Trust Securities shall have no preemptive or
similar rights and when issued and delivered to Holders against payment of the
purchase price therefor will be fully paid and nonassessable by the Trust. The
Holders of the
- 25 -
<PAGE>
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the holders of
not less than 25% in principal amount of the outstanding Debentures fail to
declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due and payable, provided that the payment of principal and
interest on such Debentures shall remain subordinated to the extent provided in
the Indenture.
At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Preferred
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including
any Additional Interest (as defined in the Indenture)) on all
of the Debentures,
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each
- 26 -
<PAGE>
outstanding Debenture. No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by a Responsible Officer of the Property Trustee of
written notice declaring such an acceleration, or rescission and annulment
thereof, by Holders of the Preferred Securities Certificates, a record date
shall be established for determining Holders of Outstanding Preferred Securities
entitled to join in such notice, which record date shall be at the close of
business on the day the Property Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain Holders
after such record date; provided, that, unless such declaration of acceleration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having joined in such notice prior to the day
which is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Debentures.
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2
and in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
- 27 -
<PAGE>
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities, provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
receipt of the prior written consent of each Holder of Preferred Securities. The
Trustees shall not revoke any action previously authorized or approved by a vote
of the Holders of Preferred Securities, except by a subsequent vote of the
Holders of Preferred Securities. The Property Trustee shall notify all Holders
of the Preferred Securities of any notice of default received from the Debenture
Trustee with respect to the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Administrative Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that such action shall not cause the Trust to fail to be classified as a
grantor trust for United States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Trust to fail to be
classified as a grantor trust for United States Federal income tax purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Holders of Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities of
record, at such Holder's registered address, at least 15 days and not more than
90 days before the meeting. At any such meeting, any business properly before
the meeting may be so considered whether or not stated in the notice of the
meeting. Any adjourned meeting may be held as adjourned without further notice.
- 28 -
<PAGE>
Section 6.3. Meetings of Holders of Preferred Securities.
No annual meeting of Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of Holders of Preferred Securities to
vote on any matter upon the written request of the Holders of record of 25% of
the Preferred Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Securities to vote on any
matters as to which Holders of Preferred Securities are entitled to vote.
Holders of Preferred Securities of record of 50% of the Outstanding
Preferred Securities (based upon their Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Holders.
If a quorum is present at a meeting, an affirmative vote by the Holders
of Preferred Securities of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their Liquidation
Amount) held by the Holders of Preferred Securities of record present, either in
person or by proxy, at such meeting shall constitute the action of the Holders
of Preferred Securities, unless this Trust Agreement requires a greater number
of affirmative votes.
Section 6.4. Voting Rights.
Holders shall be entitled to one vote for each $_________ of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
Section 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Administrative Trustees, or with such other
officer or agent of the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
- 29 -
<PAGE>
Section 6.6. Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken
without a meeting if Holders holding more than a majority of all Outstanding
Trust Securities (based upon their Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Trust Agreement) shall consent to the action in
writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Holders or the payment of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
Section 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Holders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders or Owners in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders or Owners
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 Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
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 any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
- 30 -
<PAGE>
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder of every Trust 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 Trustees or
the Trust in reliance thereon, whether or not notation of such action is made
upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust 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 part of such Liquidation Amount.
If any dispute shall arise between the Holders and the Administrative
Trustees or among such Holders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee under this Article VI,
then the determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce such Holder's rights under the
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee (as defined in the Guarantee), the Trust or any person or entity.
Section 6.9. Inspection of Records.
Upon reasonable prior written notice to the Administrative Trustees and
the Property Trustee, the records of the Trust shall be open to inspection by
Holders during normal business hours for any purpose reasonably related to such
Holder's interest as a Holder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
- 31 -
<PAGE>
(c) the Delaware Trustee is a Delaware banking corporation duly
organized, validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its 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;
(f) the execution, delivery and performance of this Trust Agreement has
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and does not require any approval
of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) to the best of its
knowledge without independent investigation violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States, the State
of New York or the State of Delaware, as the case may be, governing the banking,
trust or general powers of the Property Trustee or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree applicable to the
Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing Federal law governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be, under the laws of
the United States, the State of New York or the State of Delaware;
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge without independent
investigation, threatened against or affecting the Property Trustee or the
Delaware Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case may be,
to enter into or perform its obligations as one of the Trustees under this Trust
Agreement; and
- 32 -
<PAGE>
(i) the Delaware Trustee fulfills for the Trust the statutory
requirements of Section 3807 of the Delaware Business Trust Act.
Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Closing Date on
behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Holders will be, as of each such date, entitled to the benefits of this
Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to them against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release an
Administrative Trustee or the Delaware Trustee from liability for its own gross
negligent action, its own gross negligent failure to act, or its own willful
misconduct. To the extent that, at law or in equity, an Administrative Trustee
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to the Holders, such Administrative Trustee or the Delaware Trustee
shall not be liable to the Trust or to any Holder for such Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Administrative Trustees or the Delaware Trustee otherwise existing at law or in
equity, are agreed by the Depositor and the Holders to replace such other duties
and liabilities of the Administrative Trustees or the Delaware Trustee.
- 33 -
<PAGE>
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.1(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree in writing
with the Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
- 34 -
<PAGE>
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been cured
or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Holders and the Property Trustee, unless such exercise shall
have been revoked.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Holders of Preferred Securities are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability of any kind except for its own
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by
an Officers' Certificate;
- 35 -
<PAGE>
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly delivered by
the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its own selection
(which counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the 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 reliance thereon and in
accordance with such advice, such counsel may be counsel to the Depositor or any
of its Affiliates, and may include any of its employees; the Property Trustee
shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property 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, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit at the sole expense of the Depositor and shall incur
no liability or additional liability of any kind by reason of such inquiry or
investigation;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, and the Property 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;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request written instructions from the Holders, which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be fully protected in acting in accordance with such instructions; and
- 36 -
<PAGE>
(k) except as otherwise expressly provided by the express terms of this
Trust Agreement, the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
Section 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees as agreed upon from time to time in writing
such compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as specified in a separate
agreement between any of the Trustees and the Depositor;
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all expenses, disbursements and advances incurred or
made by the Trustees in accordance with any provision of this Trust Agreement
(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 willful misconduct;
(c) to fully indemnify and hold harmless (i) each Trustee, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates,
- 37 -
<PAGE>
(referred to herein as an "Indemnified Person") from and against any and all
loss, damage, liability, tax, penalty, expense (including taxes other than taxes
based on the income of the Property Trustee) or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement and the resignation or removal of any Trustee.
No Trustee may claim any lien on any Trust Property as a result of any
amount due pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property Trustee,
subject to Section 8.8), may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. Neither the Depositor, nor any Trustee,
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee 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. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its 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 Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign as soon as practicably possible in the manner and
with the effect hereinafter specified in this Article.
- 38 -
<PAGE>
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property 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 Trust
Agreement.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.
- 39 -
<PAGE>
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder shall be exercised
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant 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 8.11.
- 40 -
<PAGE>
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within 30 days after the giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Holders of the
Common Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Holders of the Common Securities at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Holders of the Common Securities, by Act of the Holders of the
Common Securities delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall comply with the
applicable requirements of Section 8.11. If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Holders of a majority in Liquidation Amount
of the Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Trustee shall comply with the applicable requirements of Section
8.11. If an Administrative Trustee shall resign, be removed or become incapable
of acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Holders of the Common Securities by
Act of the Holders of Common Securities delivered to the Administrative Trustee
shall promptly appoint a successor Administrative Trustee or Administrative
Trustees and such successor Administrative Trustee or Trustees shall comply with
the applicable requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed by the Holders of the Common Securities or the
Holders of Preferred Securities and accepted appointment in the manner required
by Section 8.11, any Holder who has been a Holder 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 Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all Holders
in the manner provided in Section 10.8 and shall give notice to the Depositor.
Each notice shall include the name of the successor Relevant Trustee and the
address of its Corporate Trust Office if it is the Property Trustee.
- 41 -
<PAGE>
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or Delaware Trustee, as the case may be, set forth
in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust 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 Depositor 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 if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
- 42 -
<PAGE>
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the Delaware 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 such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant Trustee, shall
be the successor of such Relevant 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.
Section 8.13. Preferential Collection of Claims Against Depositor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies 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 Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
- 43 -
<PAGE>
Section 8.14. Reports by Property Trustee.
(a) Not later than July 15 of each year commencing with July 15, 1998,
the Property Trustee shall transmit to all Holders in accordance with Section
10.8, and to the Depositor, a brief report dated as of the immediately preceding
December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national stock exchange,
the Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act. Delivery of such reports, information and documents to the Property Trustee
is for information purposes only and the Property Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Property Trustee
is entitled to rely exclusively on Officers' Certificates).
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust
- 44 -
<PAGE>
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the
form of an Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided that the Holder of
all of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees.
The Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of this Trust Agreement, as set forth herein.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
Section 9.1. Termination Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on the
date which is ________ years from the date of this Agreement (the "Expiration
Date"), following the distribution of the Trust Property in accordance with
Section 9.4.
- 45 -
<PAGE>
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor at
any time to dissolve the Trust and distribute Debentures to Holders in exchange
for the Preferred Securities (which direction is optional and wholly within the
discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Holders upon the
liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all
of the Trust Securities pursuant to Section 4.2, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities; (b) the
payment of any expenses owed by the Trust; (c) the discharge of all
administrative duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to the Trust or the Holders; and
(d) the filing of a certificate of cancellation with the Delaware Secretary of
State.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Holder a Like Amount of Debentures, subject
to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
- 46 -
<PAGE>
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to Holders, the
Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as is customary to effect
the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
the Depositor shall use its best efforts to have the Debentures listed on the
New York Stock Exchange or on such other exchange, interdealer quotation system
or self-regulatory organization as the Preferred Securities are then listed,
(iv) any Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Debentures) and (v) all rights of Holders
holding Trust Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as is
customary. In such event, on the date of the dissolution, winding-up or other
termination of the Trust, Holders will be entitled to receive out of the assets
of the Trust available for distribution to Holders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holders of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if
- 47 -
<PAGE>
a Debenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debentures,
(iii) the Successor Securities are listed or traded, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or other organization on which the Preferred Securities are then listed
or traded, if any, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Preferred Securities (including
any Successor Securities) in any material respect, (vi) such successor entity
has a purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act
and (viii) the Depositor owns all of the Common Securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States Federal income tax purposes.
- 48 -
<PAGE>
ARTICLE X.
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Holders.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Holder for such person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee [the Delaware Trustee], the Administrative Trustees and the
Depositor, without the consent of any Holders, (i) to cure any ambiguity,
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 Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement, or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will be classified for United States Federal
income tax purposes as a grantor trust at all times that any Trust Securities
are outstanding or to ensure that the Trust will not be required to register as
an investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Holder, and any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Holders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Holders representing not less than a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States Federal
income tax purposes or the Trust's exemption from status of an investment
company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date; notwithstanding any other provision herein,
without the unanimous consent of the Holders (such consent being obtained in
accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of this Section
10.2 may not be amended.
- 49 -
<PAGE>
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in full
compliance with this Trust Agreement.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates 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 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE
TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY CONFLICT OF LAW PRINCIPLES.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
- 50 -
<PAGE>
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Holder or the Depositor may be given or served in writing by
deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Holder of Preferred Securities, to such Holder, as such Holder's name and
address may appear on the Securities Register; and (b) in the case of the
Holders of the Common Securities or the Depositor, to United HealthCare
Corporation, 300 Opus Center, 9900 Bren Road East, Minnetonka, Minnesota 55343,
Attention: Treasurer, facsimile no.: (612) 936-0044. Any notice to Holders of
Preferred Securities shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been sufficiently
given or made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to The Bank
of New York, 101 Barclay Street, Floor 21 West, New York, New York 10286,
Attention: Corporate Trust Administration; (b) with respect to the Delaware
Trustee, to The Bank of New York (Delaware), White Clay Center, Route 273,
Newark, Delaware 19711, Attention: Corporate Trust Administration; and (c) with
respect to the Administrative Trustees, to them at the address above for notices
to the Depositor, marked "Attention Administrative Agents of United HealthCare
Corporation" Such notice, demand or other communication to or upon the Trust or
the Property Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or a Responsible Officer of
the Property Trustee.
- 51 -
<PAGE>
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Trust has been
terminated in accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Trust under any Bankruptcy Law or otherwise
join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Depositor takes action in violation of this
Section 10.9, the Property Trustee agrees, for the benefit of Holders, that at
the expense of the Depositor, it shall file an answer with the bankruptcy court
or otherwise contest the filing of such petition by the Depositor against the
Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be stopped
and precluded therefrom and such other defenses, if any, as counsel for the
Trustee or the Trust may assert. The provisions of this Section 10.9 shall
survive the termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
- 52 -
<PAGE>
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
Section 10.12. Counterparts.
This Trust Agreement 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 one and the same document.
- 53 -
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amended and Restated Trust
Agreement as of the date first written above.
UNITED HEALTHCARE CORPORATION
By:___________________________________
Name: ____________________________
Title: ____________________________
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:___________________________________
Name: ____________________________
Title: ____________________________
THE BANK OF NEW YORK,
as Property Trustee
By:___________________________________
Name: ____________________________
Title: ____________________________
__________________________________________
Arnold Kaplan, as Administrative Trustee
__________________________________________
David J. Lubben, as Administrative Trustee
__________________________________________
Allan Weiss, as Administrative Trustee
- 54 -
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
[NAME OF TRUST]
THIS CERTIFICATE OF TRUST of ________________ (the "Trust"), dated
________________, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (ss.) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
_________________.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19171, Attention: Corporate Trust Administrator.
3. Effective Date. This Certificate of Trust shall be effective as of
________________.
A-1
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but
solely as Trustee
By:____________________________________________
Name: _____________________________________
Title: _____________________________________
_______________________________________________
Arnold Kaplan, not in his individual capacity,
but solely as Administrative Trustee
_______________________________________________
David J. Lubben, not in his individual capacity,
but solely as Administrative Trustee
_______________________________________________
Allan Weiss, not in his individual capacity, but
solely as Administrative Trustee
A-2
<PAGE>
EXHIBIT B
B-1
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER
NUMBER OF COMMON SECURITIES
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
[NAME OF TRUST]
______% COMMON SECURITIES
(LIQUIDATION AMOUNT $_______ PER COMMON SECURITY)
________________, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that United HealthCare
Corporation (the "Holder") is the registered owner of ____________(____) common
securities of the Trust representing beneficial interests of the Trust and
designated the ____% Common Securities (liquidation amount $____ per Common
Security) (the "Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of ____________(____), as the same may be amended from time to
time (the "Trust Agreement") including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
C-1
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this __________ day of __________.
[TRUST]
By:________________________________
Name:___________________________
Administrative Agent
C-2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________ __, 199__, between United HealthCare
Corporation, a ________ corporation ("United HealthCare"), and __________, a
Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and purchase Debentures from United HealthCare and to issue and
sell ____% Preferred Securities (the "Preferred Securities") with such powers,
preferences and special rights and restrictions as are set forth in the Amended
and Restated Trust Agreement of the Trust dated as of _________, _____ as the
same may be amended from time to time (the "Trust Agreement");
WHEREAS, United HealthCare will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase United HealthCare hereby agrees shall
benefit United HealthCare and which purchase United HealthCare acknowledges will
be made in reliance upon the execution and delivery of this Agreement, United
HealthCare and Trust hereby agree as follows:
ARTICLE I.
Section 1.1. Guarantee by [Trust]
Subject to the terms and conditions hereof, United HealthCare hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
Section 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect
upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) the date on which there
are no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities
D-1
<PAGE>
or any Beneficiary must restore payment of any sums paid under the Preferred
Securities, under any Obligation, under the Guarantee Agreement dated the date
hereof by United HealthCare and ________________, as guarantee trustee or under
this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.3. Waiver of Notice.
United HealthCare hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and United HealthCare
hereby waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
Section 1.4. No Impairment.
The obligations, covenants, agreements and duties of United HealthCare
under this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, United HealthCare with respect to the happening of any of the
foregoing.
Section 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against United
HealthCare and United HealthCare waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against United HealthCare.
D-2
<PAGE>
Section 1.6. Subrogation.
United HealthCare shall be subrogated to all (if any) rights of the
Trust in respect of any amounts paid to the Beneficiaries by United HealthCare
under this Agreement; provided, however, that United HealthCare shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Agreement.
ARTICLE II.
Section 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind
the successors, assigns, receivers, trustees and representatives of United
HealthCare and shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
Section 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), first-class mail or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed):
[TRUST]
c/o The Bank of New York
101 Barclay Street
New York, New York 10286
Facsimile No.: (212) 815-5915
Attn: Corporate Trust Administration
United HealthCare
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Facsimile No.: (612) 936-0044
D-3
<PAGE>
Attention: Treasurer
Section 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
THIS AGREEMENT is executed as of the day and year first above written.
UNITED HEALTHCARE CORPORATION
By:___________________________________
Name:______________________________
Title:_____________________________
[TRUST]
By:___________________________________
Name:______________________________
Administrative Trustee
D-4
<PAGE>
EXHIBIT E
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--This
Preferred Security is a Global Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) TO
[TRUST] OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER
NUMBER OF PREFERRED SECURITIES
P-
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
[TRUST]
____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $___ PER PREFERRED SECURITY)
[TRUST], a statutory business trust formed under the laws of the State
of Delaware (the "Trust"), hereby certifies that ________________ (the "Holder")
is the registered owner of ____________(____) Preferred Securities of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the [TRUST] ____% Preferred Securities, Series __________
(liquidation amount $__________ per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer
E-1
<PAGE>
as provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of ________________, as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement entered into by United HealthCare, a
Minnesota corporation, and The Bank of New York, as guarantee trustee, dated as
of _________ __, 199__, (the "Guarantee"), to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____ day of __________, ____.
[TRUST]
[TRUST]
By:_____________________________
Name:________________________
Administrative Trust
This is one of the Preferred Securities of the series designated therein
and issued pursuant to the within-mentioned Trust Agreement.
Dated:_____________________
The Bank of New York, as Trustee
By:_____________________________
Authorized Signatory
E-2
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
this Preferred Security to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ________________
Signature:_________________________________________
(Sign exactly as your name appears on the
other side of this Preferred Security
Certificate)
The signature(s) must be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee medallion program), pursuant to S.E.C. Rule
17Ad-15.
E-3
<PAGE>
Exhibit 4.17
----------------------------------------------------------
GUARANTEE AGREEMENT
BETWEEN
UNITED HEALTHCARE CORPORATION
(AS GUARANTOR)
AND
THE BANK OF NEW YORK
(AS TRUSTEE)
DATED AS OF
[DATE]
----------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
Section of Trust Section of
Indenture Act of 1939, as amended Guarantee Agreement
310(a). 4.1(a)
310(b). 4.1(c), 2.8
310(c). Inapplicable
311(a). 2.2(b)
311(b). 2.2(b)
311(c). Inapplicable
312(a). 2.2(a)
312(b). 2.2(b)
313. 2.3
314(a). 2.4
314(b). Inapplicable
314(c). 2.5
314(d). Inapplicable
314(e). 1.1, 2.5, 3.2
314(f). 2.1, 3.2
315(a). 3.1(d)
315(b). 2.7
315(c). 3.1
315(d). 3.1(d)
316(a). 1.1, 2.6, 5.4
316(b). 5.3
316(c). 9.2
317(a). Inapplicable
317(b). Inapplicable
318(a). 2.1(b)
318(b). 2.1
318(c). 2.1(a)
- ----------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS
SECTION 1.1. Definitions................................................1
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application...........................4
SECTION 2.2. List of Holders............................................4
SECTION 2.3. Reports by the Guarantee Trustee...........................4
SECTION 2.4. Periodic Reports to the Guarantee Trustee..................5
SECTION 2.5. Evidence of Compliance with Conditions Precedent...........5
SECTION 2.6. Events of Default; Waiver..................................5
SECTION 2.7. Event of Default; Notice...................................5
SECTION 2.8. Conflicting Interests......................................6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.................6
SECTION 3.2. Certain Rights of Guarantee Trustee........................7
SECTION 3.3. Indemnity..................................................9
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility............................9
SECTION 4.2. Appointment, Removal and Resignation
of the Guarantee Trustee..................................10
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee.................................................10
SECTION 5.2. Waiver of Notice and Demand...............................11
SECTION 5.3. Obligations Not Affected..................................11
SECTION 5.4. Rights of Holders.........................................12
SECTION 5.5. Guarantee of Payment......................................12
SECTION 5.6. Subrogation...............................................12
SECTION 5.7. Independent Obligations...................................12
ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.............................................13
SECTION 6.2. Pari Passu Guarantees.....................................13
ARTICLE VII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1. Guarantor May Consolidate, Etc., Only on Certain Terms....13
SECTION 7.2. Successor Guarantor Substituted...........................14
ARTICLE VIII. TERMINATION
SECTION 8.1. Termination...............................................14
<PAGE>
ARTICLE IX. MISCELLANEOUS
SECTION 9.1. Successors and Assigns....................................14
SECTION 9.2. Amendments................................................15
SECTION 9.3. Notices...................................................15
SECTION 9.4. Benefit...................................................16
SECTION 9.5. Interpretation............................................16
SECTION 9.6. Governing Law.............................................17
- ii -
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of __________, is executed and delivered
by UNITED HEALTHCARE CORPORATION, a Minnesota corporation (the "Guarantor")
having its principal office at 300 Opus Center, 9900 Bren Road East, Minnetonka,
Minnesota 55343, and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders from time to
time of the Preferred Securities (as defined herein) of __________, a Delaware
statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
__________ (the "Trust Agreement"), among the Guarantor, as Depositor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, and the Administrative Trustees named therein and the Holders from time
to time of undivided beneficial interests in the assets of the Trust, the Trust
is issuing $__________ in aggregate Liquidation Amount (as defined in the Trust
Agreement) of its ____% Preferred Securities, Liquidation Amount $____ per
Preferred Security (the " Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Trust and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Trust and the
proceeds thereof, together with the proceeds from the issuance of the Trust's
Common Securities (as defined below), will be used to purchase the Debentures
(as defined in the Trust Agreement) of the Guarantor which was deposited with
The Bank of New York, as Property Trustee under the Trust Agreement, as trust
assets; and
WHEREAS, as an incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders of the Preferred Securities
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement and
pursuant to Section 5.1 hereof extends the Guarantee for the benefit of the
Holders from time to time of the Preferred Securities.
ARTICLE 1. DEFINITIONS
SECTION 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement and the Indenture (as
defined herein), each as in effect on the date hereof.
<PAGE>
"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; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Trust. 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.
"Board of Directors" means either the board of directors of the Guarantor
or any committee of that board duly authorized to act hereunder.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Trust.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee" has the meaning set forth in Section 5.1.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Trust: (i) any accrued and unpaid Distributions (as
defined in the Trust Agreement) required to be paid on the Preferred Securities,
to the extent the Trust shall have funds on hand available therefor at such
time, (ii) the applicable Redemption Price (as defined in the Trust Agreement),
to the extent the Trust shall have funds on hand available therefor at such
time, and (iii) upon a voluntary or involuntary termination, winding up or
liquidation of the Trust, unless Debentures are distributed to the Holders, the
lesser of (a) the aggregate of the Liquidation Distribution (as defined in the
Trust Agreement) and (b) the amount of assets of the Trust remaining available
for distribution to Holders of Preferred Securities after satisfaction of
liabilities to creditors of the Trust as required by applicable law.
"Guarantee Trustee" means The Bank of New York, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement, and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Trust, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
- 2 -
<PAGE>
"Indenture" means the Junior Subordinated Indenture dated as of __________,
as supplemented and amended between the Guarantor and The Bank of New York , as
trustee.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the Liquidation Amount of all then
outstanding Preferred Securities issued by the Trust.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Other Guarantees" means any guarantees similar to the Guarantee issued,
from time to time, by the Guarantor on behalf of holders of one or more series
of Preferred Securities issued by one or more UHC Trusts (as defined in the
Indenture) other than the Trust.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, when used with respect to the Guarantee
Trustee, any officer within the corporate trust department of the Guarantee
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Guarantee Trustee who customarily performs functions similar to those performed
by the Persons who at the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Guarantee Agreement.
- 3 -
<PAGE>
"Securities Act" means the Securities Act of 1933, as amended.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before January 15 and July 15 of each year,
commencing July 15, 1998, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders") as of a date not more than 15 days prior to the delivery thereof, and
(b) at such other times as the Guarantee Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession or
control of the Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than December 15 of each year, commencing December 15, , the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
- 4 -
<PAGE>
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee, on an annual basis,
such evidence of compliance with such conditions precedent, if any, provided for
in this Guarantee Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred Securities
may, by vote, on behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default actually known to a Responsible Officer of the
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice; provided, that, except in the case of a default in the payment of a
Guarantee Payment, the Guarantee Trustee shall be fully protected in withholding
such notice if and so long as the Board of Directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Guarantee
Trustee in good faith determines that the withholding of such notice is in the
best interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless a Responsible Officer charged with the administration of
this Guarantee Agreement shall have obtained written notice, of such Event of
Default.
- 5 -
<PAGE>
SECTION 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee shall be held by the Guarantee Trustee for the benefit
of the Holders, and the Guarantee Trustee shall not transfer this Guarantee to
any Person except to a Holder exercising his or her rights pursuant to Section
5.4(iv) or to a Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee shall automatically vest in
any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee
Trustee of its appointment hereunder, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants, duties or obligations shall be
read into this Guarantee Agreement against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6), the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of care and
skill in its exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement; and
- 6 -
<PAGE>
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Preferred Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall be fully
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 (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
- 7 -
<PAGE>
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of its own
selection, and the written advice or opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or
opinion. Such legal counsel may be legal counsel to the Guarantor or any of
its Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time, at the expense of the Guarantor, to seek
instructions concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity satisfactory to it,
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee 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 Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit at the expense of the Guarantor and shall
incur no liability or additional liability of any kind by reason of such
inquiry or investigation.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, and the Guarantee Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request written instructions from
the Holders, (B) may refrain from enforcing such remedy or right or taking
- 8 -
<PAGE>
such other action until such instructions are received, and (C) shall be
fully protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Indemnity.
The Guarantor agrees to fully indemnify the Guarantee Trustee for, and to
hold it harmless against, any and all loss, liability, claim, damage or expense
(including taxes other than taxes based on the income of the Guarantee Trustee)
incurred without negligence or bad faith on the part of the Guarantee Trustee,
arising out of or in connection with the acceptance or administration of this
Guarantee Agreement, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The Guarantee Trustee will not claim or
exact any lien or charge on any Guarantee Payment as a result of any amount due
to it under the Guarantee Agreement.
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined Preferred and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section
4.1(a)(ii) and to the extent permitted by the Trust Indenture Act, the
combined Preferred and surplus of such corporation shall be deemed to be
its combined Preferred and surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
- 9 -
<PAGE>
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full on a
subordinated basis to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the Trust may
have or assert other than the defense of payment (the "Guarantee"). The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Trust to pay such amounts to the Holders.
- 10 -
<PAGE>
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Guarantee Trustee, Trust or
any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Trust granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
- 11 -
<PAGE>
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee will be
deposited with the Guarantee Trustee to be held for the benefit of the Holders;
(ii) the Guarantee Trustee has the right to enforce this Guarantee on behalf of
the Holders; (iii) the Holders of a Majority in Liquidation Amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of this Guarantee Agreement or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder
may institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Trust or any other Person. The
Guarantor waives any rights to require that any action be brought first against
the Trust or any other person before proceeding directly against the Guarantor.
SECTION 5.5. Guarantee of Payment.
This Guarantee creates a guarantee of payment and not of collection. This
Guarantee will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Trust) or upon
distribution of Debentures to Holders as provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Trust in respect of any amounts paid to the Holders by the Guarantor
under this Guarantee Agreement and shall have the right to waive payment by the
Trust pursuant to Section 5.1; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the Preferred Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
- 12 -
<PAGE>
ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee will constitute
unsecured obligations of the Guarantor and will rank subordinate and junior in
right of payment to all Senior Debt (as defined in the Indenture) in the same
manner as Debentures, except (a) those obligations which expressly by their
terms are made pari passu or subordinate to the obligations of the Guarantor
under the Guarantee Agreement or (b) obligations arising under Other Guarantees.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee shall rank pari passu
with the obligations of the Guarantor under all Other Guarantees.
ARTICLE VII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1. Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and no Person shall consolidate with or merge into the Guarantor
or convey, transfer or lease its properties and assets substantially as an
entirety to the Guarantor, unless:
(1) in case the Guarantor shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Guarantor is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Guarantor substantially as an
entirety shall be a corporation, partnership or trust organized and existing
under the laws of the United States of America or any State or the District of
Columbia;
(2) immediately after giving effect to such consolidation, merger,
conveyance, transfer or lease, 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;
(3) such consolidation, merger, conveyance, transfer or lease is permitted
under the Trust Agreement and the Indenture and does not give rise to any breach
or violation of the Trust Agreement or the Indenture; and
(4) the Guarantor has delivered to the Guarantee Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and assumption of the Guarantor's
obligations under this Guarantee Agreement comply with this Article
- 13 -
<PAGE>
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Guarantee Trustee, subject to
Section 3.1 hereof, may rely upon such Officers' Certificate and Opinion of
Counsel as conclusive evidence that such transaction complies with this Section
7.1.
SECTION 7.2. Successor Guarantor Substituted.
Upon any consolidation or merger by the Guarantor with or into any other
Person, or any conveyance, transfer or lease by the Guarantor of its properties
and assets substantially as an entirety to any Person in accordance with Section
7.1, the successor Person formed by such consolidation or into which the
Guarantor is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Guarantor under this Guarantee Agreement with the same effect as if such
successor Person had been named as the Guarantor herein; and in the event of any
such conveyance, transfer or lease the Guarantor shall be discharged from all
obligations and covenants under this Guarantee Agreement.
ARTICLE VIII. TERMINATION
SECTION 8.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon the earliest of (i) full payment of the applicable Redemption Price
of all Preferred Securities, (ii) the distribution of Debentures to the Holders
in exchange for all of the Preferred Securities or (iii) full payment of the
amounts payable in accordance with the Trust Agreement upon liquidation of the
Trust. Notwithstanding the foregoing clauses (i) through (iii), this Guarantee
Agreement will continue to be effective or will be reinstated if it has been
terminated pursuant to one of such clauses (i) through (iii), as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to Preferred Securities or this Guarantee Agreement.
ARTICLE IX. MISCELLANEOUS
SECTION 9.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VII hereof and
Article VIII of the Indenture, the Guarantor shall not assign its obligations
hereunder.
- 14 -
<PAGE>
SECTION 9.2. Amendments.
Except with respect to any changes which do not adversely affect the rights
of the Holders in any material respect (in which case no vote will be required),
this Guarantee Agreement may not be amended without the prior approval of the
Holders of not less than a Majority in Liquidation Amount of the Preferred
Securities. The provisions of Article VI of the Trust Agreement concerning
meetings of the Holders shall apply to the giving of such approval.
SECTION 9.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such other
address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
United HealthCare Corporation
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Facsimile No.: (612) 992-5338
Attention: Treasury Department
(b) if given to the Trust, in care of the Guarantee Trustee, at the Trust's
(and the Guarantee Trustee's) address set forth below or such other address as
the Guarantee Trustee on behalf of the Trust may give notice to the Holders:
[TRUST]
c/o United HealthCare Corporation
300 Opus Center
9900 Bren Road East
Minneapolis, Minnesota 55343
Facsimile No.: (612) 992-5338
Attention: Treasury Department
- 15 -
<PAGE>
with a copy to:
The Bank of New York
101 Barclay Street
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the books and
records of the Trust.
All notices hereunder shall be deemed to have been given when received in
person (and in the case of the Guarantee Trustee by a Responsible Officer),
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
SECTION 9.4. Benefit.
This Guarantee is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
SECTION 9.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined in
the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
- 16 -
<PAGE>
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
SECTION 9.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
- 17 -
<PAGE>
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.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
UNITED HEALTHCARE CORPORATION
By:
---------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:
---------------------------
Name:
Title:
- 18 -
<PAGE>
EXHIBIT 4.18
UNITED HEALTHCARE CORPORATION
----------
CERTIFICATE OF DESIGNATIONS
FOR
$____ CONVERTIBLE PREFERRED STOCK, SERIES ____
(PURSUANT TO MINNESOTA STATUTES, SECTION 302A.401, SUBD. 3(B))
----------
The undersigned, being the [corporate title] of United HealthCare
Corporation (the "Corporation"), a corporation organized and existing under the
Minnesota Business Corporation Act, in accordance with the provisions of
Minnesota Statutes, Section 302A.401, Subd. 3(b), does hereby certify that:
Pursuant to the authority vested in the Board of Directors of the
Corporation by the Articles of Incorporation of the Corporation, the Board of
Directors on [specify date], in accordance with Minnesota Statutes, Section
302A.401, Subd. 3, duly adopted the following resolution establishing a series
of [number] shares of the Corporation's Preferred Stock, to be designated as its
$__________ Convertible Preferred Stock, Series _____:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation (the "Board of Directors") by the Articles of Incorporation
of the Corporation, the Board of Directors hereby establishes a series of
$__________ Convertible Preferred Stock, Series _____ of the Corporation and
hereby states the designation and number of shares, and fixes the relative
rights and preferences, of such series of shares as follows:
$____ CONVERTIBLE PREFERRED STOCK, SERIES ____
SECTION 1. DESIGNATION; NUMBER OF SHARES. The shares of such series shall
be designated as "$_____ Convertible Preferred Stock, Series _____" (the
"Convertible Preferred Stock"), and the number of shares constituting the
Convertible Preferred Stock shall be [number].
SECTION 2. PAR VALUE; NO CUMULATIVE VOTING; NO PREEMPTIVE RIGHTS. [As
provided in Article [___] of the Corporation's Articles of Incorporation,] the
Convertible Preferred Stock shall have a par value of $__________ per share. [As
provided in Article [____] of the Corporation's Articles of Incorporation,]
holders of Convertible Preferred Stock shall not be entitled to cumulate their
votes in any election of directors in which they are entitled to vote and shall
not
<PAGE>
be entitled to any preemptive rights to acquire shares of any class or series of
capital stock of the Corporation.
SECTION 3. RANK. The Convertible Preferred Stock shall rank prior to all of
the Corporation's Common Stock, par value $ per share (the "Common Stock"), now
outstanding or hereafter issued, both as to payment of dividends and as to
distributions of assets upon the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary.
SECTION 4. DIVIDENDS AND DISTRIBUTIONS. The holders of shares of
Convertible Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for such
purpose, dividends at the rate of $____ per annum per share, and no more. Such
dividends shall be fully cumulative, shall accumulate without interest from the
date of original issuance of the Convertible Preferred Stock and shall be
payable __________ in arrears in cash on each __________ and __________
commencing [specify first payment date] (provided, that if any such date is a
Saturday, Sunday or legal holiday in the place where such dividend is to be
paid, then such dividend shall be payable without interest on the next day that
is not a Saturday, Sunday or legal holiday) to holders of record as they appear
on the stock books of the Corporation on such record dates as shall be fixed by
the Board of Directors. Such record dates shall be not more than 60 nor less
than 10 days preceding the respective dividend payment dates. The amount of
dividends payable per share of Convertible Preferred Stock for each full
__________ dividend period shall be computed by dividing the annual dividend
amount by __________. The amount of dividends payable for the initial dividend
period and for any other period shorter than a full __________ dividend period
shall be computed on the basis of a 360-day year of twelve 30-day months. No
dividends or other distributions, other than dividends payable solely in shares
of Common Stock or other capital stock of the Corporation ranking junior as to
payment of dividends to the Convertible Preferred Stock (such Common Stock and
other capital stock being referred to herein collectively as "Junior Dividend
Stock"), shall be paid or set apart for payment on, and no purchase, redemption
or other acquisition shall be made by the Corporation of, any shares of Junior
Dividend Stock unless and until all accumulated and unpaid dividends on the
Convertible Preferred Stock, including the full dividend for the then-current
__________ dividend period, shall have been paid or declared and set apart for
payment.
If at any time any dividend on any capital stock of the Corporation ranking
senior as to payment of dividends to the Convertible Preferred Stock (such
capital stock being referred to herein as "Senior Dividend Stock") shall be in
default, in whole or in part, no dividend shall be paid or declared and set
apart for payment on the Convertible Preferred Stock unless and until all
accumulated and unpaid dividends with respect to the Senior Dividend Stock,
including the full dividend for the then-current dividend period, shall have
been paid or declared and set apart for payment, without interest. No full
dividends shall be paid or declared and set apart for payment on any capital
stock of the Corporation ranking, as to payment of dividends, on a parity with
the
- 2 -
<PAGE>
Convertible Preferred Stock (such capital stock being referred to herein as
"Parity Dividend Stock") for any period unless full cumulative dividends have
been, or contemporaneously are, paid or declared and set apart for payment on
the Convertible Preferred Stock for all dividend periods terminating on or prior
to the date of payment of such full cumulative dividends. No full dividends
shall be paid or declared and set apart for payment on the Convertible Preferred
Stock for any period unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for payment on any Parity
Dividend Stock for all dividend periods terminating on or prior to the date of
payment of such full cumulative dividends. When dividends are not paid in full
upon the Convertible Preferred Stock and any Parity Dividend Stock, all
dividends paid or declared and set apart for payment upon shares of Convertible
Preferred Stock and Parity Dividend Stock shall be paid or declared and set
apart for payment pro rata, so that the amount of dividends paid or declared and
set apart for payment per share on the Convertible Preferred Stock and the
Parity Dividend Stock shall in all cases bear to each other the same ratio that
accumulated and unpaid dividends per share on the shares of Convertible
Preferred Stock and Parity Preferred Stock bear to each other.
Any reference to "distribution" contained in this Section 4 shall not be
deemed to include any distribution made in connection with a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary.
SECTION 5. LIQUIDATION PREFERENCE. In the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of Convertible Preferred Stock shall be entitled to receive out of
the assets of the Corporation an amount equal to the dividends accumulated and
unpaid thereon to the date of final distribution to such holders, whether or not
declared, without interest, plus a sum equal to $[ ] per share, and no more,
before any payment shall be made or any assets distributed to the holders of
Common Stock or any other capital stock of the Corporation ranking junior as to
liquidation rights to the Convertible Preferred Stock (such Common Stock and
other capital stock being referred to herein collectively as "Junior Liquidation
Stock"); provided, that such rights shall accrue to the holders of Convertible
Preferred Stock only in the event that the Corporation's payments with respect
to the liquidation preferences of the holders of capital stock of the
Corporation ranking senior as to liquidation rights to the Convertible Preferred
Stock (such capital stock being referred to herein as "Senior Liquidation
Stock") are fully met. The entire assets of the Corporation available for
distribution after the liquidation preferences of any Senior Liquidation Stock
are fully met shall be distributed ratably among the holders of the Convertible
Preferred Stock and any other capital stock of the Corporation which ranks on a
parity as to liquidation rights with the Convertible Preferred Stock in
proportion to the respective preferential amounts to which each is entitled (but
only to the extent of such preferential amounts). After payment in full of the
liquidation preference of the shares of the Convertible Preferred Stock, the
holders of such shares shall not be entitled to any further participation in any
distribution of assets by the Corporation. Neither a consolidation or merger of
the Corporation with another corporation nor a sale or transfer of all or part
of the Corporation's assets for cash, securities or other
- 3 -
<PAGE>
property will be deemed a liquidation, dissolution or winding up of the
Corporation for purposes of this Section 5.
SECTION 6. REDEMPTION AT OPTION OF THE CORPORATION. The Corporation may not
redeem the Convertible Preferred Stock prior to __________. The Corporation, at
its option, may, on or after __________, redeem at any time all, or from time to
time any portion, of the Convertible Preferred Stock on any date set by the
Board of Directors, at the following cash redemption prices per share if
redeemed during the periods specified below:
TWELVE MONTHS
BEGINNING REDEMPTION PRICE
------------- ----------------
$ $
$ $
and thereafter $ ,
plus, in each case, an amount per share in cash equal to all dividends on the
Convertible Preferred Stock accumulated and unpaid on such share, whether or not
declared, to the date fixed for redemption (such sum being hereinafter referred
to as the "Redemption Price").
In case of the redemption of less than all of the then outstanding
Convertible Preferred Stock, the Corporation shall designate by lot, or in such
other manner as the Board of Directors may determine, the shares to be redeemed,
or shall effect such redemption pro rata. Notwithstanding the foregoing, the
Corporation shall not redeem less than all of the Convertible Preferred Stock at
any time outstanding until all dividends accumulated and in arrears upon all
Convertible Preferred Stock then outstanding shall have been paid for all past
dividend periods.
Not more than 60 nor less than 30 days prior to the redemption date, notice
by first class mail, postage prepaid, shall be given to the holders of record of
the Convertible Preferred Stock to be redeemed, addressed to such shareholders
at their last addresses as shown on the stock books of the Corporation. Each
such notice of redemption shall specify the date fixed for redemption; the
redemption price; the place or places of payment; the then-effective Conversion
Rate and Conversion Price (as defined in Section 7); that the right of holders
of Convertible Preferred Stock called for redemption to exercise their
conversion right pursuant to Section 7 shall expire as to such shares at the
close of business on the date fixed for redemption (provided that there is no
default in payment of the Redemption Price); that payment of the Redemption
Price will be made upon presentation and surrender of certificates representing
the shares of Convertible Preferred Stock; that accumulated but unpaid dividends
to the date fixed for redemption will be paid on the date fixed for redemption;
that accumulated but unpaid dividends will not be paid in the case of a
conversion of Convertible
- 4 -
<PAGE>
Preferred Stock; and that on and after the redemption date, dividends will cease
to accumulate on such shares.
Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not a holder of the Convertible
Preferred Stock receives such notice; and failure so to give such notice, or any
defect in such notice, to the holders of any shares designated for redemption
shall not affect the validity of the proceedings for the redemption of any other
shares of Convertible Preferred Stock. On or after the date fixed for redemption
as stated in such notice, each holder of the shares called for redemption (other
than shares which have been duly surrendered for conversion at or before the
close of business on the date fixed for redemption) shall surrender the
certificate or certificates evidencing such shares to the Corporation at the
place designated in such notice and shall thereupon be entitled to receive
payment of the Redemption Price. If fewer than all the shares represented by any
such surrendered certificate or certificates are redeemed, a new certificate
shall be issued representing the unredeemed shares. If, on the date fixed for
redemption, funds necessary for the redemption shall be available therefor and
shall have been irrevocably deposited or set aside, then, notwithstanding that
the certificates evidencing any shares so called for redemption shall not have
been surrendered, the dividends with respect to the shares so called shall cease
to accumulate on and after the date fixed for redemption, such shares shall no
longer be deemed outstanding, the holders thereof shall cease to be
shareholders, and all rights whatsoever with respect to such shares (except the
right of the holders thereof to receive the Redemption Price without interest
upon surrender of their certificates) shall terminate.
SECTION 7. CONVERSION AT OPTION OF HOLDERS. Holders of Convertible
Preferred Stock may, at their option upon surrender of the certificates
therefor, convert any or all of their shares of Convertible Preferred Stock into
fully paid and nonassessable shares of Common Stock (and such other securities
and property as they may be entitled to, as hereinafter provided) at any time
after issuance thereof; provided, that such conversion right shall expire at the
close of business on the date, if any, fixed for the redemption of Convertible
Preferred Stock in any notice of redemption given pursuant to Section 6 hereof
if there is no default in payment of the Redemption Price. Each share of
Convertible Preferred Stock shall be convertible at the office of any transfer
agent for the Convertible Preferred Stock, and at such other office or offices,
if any, as the Board of Directors may designate, into that number of fully paid
and nonassessable shares of Common Stock (calculated as to each conversion to
the nearest 1/100th of a share) as shall be equal to the Conversion Rate,
determined as hereinafter provided, in effect at the time of conversion. Shares
of Convertible Preferred Stock may initially be converted into full shares of
Common Stock at the rate of [____] shares of Common Stock for each share of
Convertible Preferred Stock, subject to adjustment from time to time as provided
in Section 8 (such conversion rate, as so adjusted from time to time, being
referred to herein as the "Conversion Rate"). The "Conversion Price" shall be
equal to $[liquidation preference] divided by the Conversion Rate. Upon
conversion, no adjustment or payment shall be
- 5 -
<PAGE>
made in respect of accumulated and unpaid dividends on the Convertible Preferred
Stock surrendered for conversion.
The right of holders of Convertible Preferred Stock to convert their shares
shall be exercised by surrendering for such purpose to the Corporation or its
agent, as provided above, certificates representing shares to be converted, duly
endorsed in blank or accompanied by proper instruments of transfer. The
Corporation shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of Common Stock or other
securities or property upon conversion of Convertible Preferred Stock in a name
other than that of the holder of the shares of Convertible Preferred Stock being
converted, nor shall the Corporation shall be required to issue or deliver any
such shares or other securities or property unless and until the person or
persons requesting the issuance thereof shall have paid to the Corporation the
amount of any such tax or shall have established to the satisfaction of the
Corporation that such tax has been paid.
A number of shares of the authorized but unissued Common Stock sufficient
to provide for the conversion of the Convertible Preferred Stock outstanding
upon the basis hereinbefore provided shall at all times be reserved by the
Corporation, free from preemptive rights, for such conversion, subject to the
provisions of the next paragraph. If the Corporation shall issue any securities
or make any change in its capital structure which would change the number of
shares of Common Stock into which each share of the Convertible Preferred Stock
shall be convertible as herein provided, the Corporation shall at the same time
also make proper provision so that thereafter there shall be a sufficient number
of shares of Common Stock authorized and reserved, free from preemptive rights,
for conversion of the outstanding Convertible Preferred Stock on the new basis.
The Corporation shall comply with all securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of the Convertible Preferred
Stock and shall use its best efforts to list such shares on each national
securities exchange on which the Common Stock is listed or to have such shares
admitted for quotation on the NASDAQ National Market System if the Common Stock
is admitted for quotation thereon.
Upon the surrender of certificates representing shares of Convertible
Preferred Stock to be converted, duly endorsed or accompanied by proper
instruments of transfer as provided above, the person converting such shares
shall be deemed to be the holder of record of the Common Stock issuable upon
such conversion, and all rights with respect to the shares surrendered shall
forthwith terminate except the right to receive the Common Stock or other
securities, cash or other assets as herein provided.
No fractional shares of Common Stock shall be issued upon conversion of
Convertible Preferred Stock but, in lieu of any fraction of a share of Common
Stock which would otherwise be issuable in respect of the aggregate number of
such shares surrendered for conversion at one time by the same holder, the
Corporation shall pay in cash an amount equal to the product of (a) the Closing
Price of a share of Common Stock (as defined in the next sentence) on the last
trading day
- 6 -
<PAGE>
before the conversion date and (b) such fraction of a share. The "Closing Price"
for each day shall be the last reported sale price regular way or, in case no
sale takes place on such day, the average of the closing bid and asked prices
regular way on such day, in either case as reported on the New York Stock
Exchange Composite Tape, or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or, if the Common Stock is
not listed or admitted to trading on any national securities exchange, on the
NASDAQ National Market System, or, if the Common Stock is not admitted for
quotation on the NASDAQ National Market System, the average of the high bid and
low asked prices on such day as recorded by the National Association of
Securities Dealers, Inc. through NASDAQ, or, if the National Association of
Securities Dealers, Inc. through NASDAQ shall not have reported any bid and
asked prices for the Common Stock on such day, the average of the bid and asked
prices for such day as furnished by any New York Stock Exchange member firm
selected from time to time by the Corporation for such purpose, or, if no such
bid and asked prices can be obtained from any such firm, the fair market value
of one share of the Common Stock on such day as determined in good faith by the
Board of Directors of the Corporation.
SECTION 8. ADJUSTMENTS TO CONVERSION RATE. Notwithstanding anything in this
Section 8 to the contrary, no change in the Conversion Rate shall be made until
the cumulative effect of the adjustments called for by this Section 8 since the
date of the last change in the Conversion Rate would change the Conversion Rate
by more than 1%. However, once the cumulative effect would result in such a
change, then the Conversion Rate shall be changed to reflect all adjustments
called for by this Section 8 and not previously made. Subject to the foregoing,
the Conversion Rate shall be adjusted from time to time as follows:
(a) In case of any consolidation or merger of the Corporation with any
other corporation (other than a wholly owned subsidiary of the
Corporation), or in case of any sale or transfer of all or substantially
all of the assets of the Corporation, or in case of any share exchange
pursuant to which all of the outstanding shares of Common Stock are
converted into other securities or property, the Corporation shall, prior
to or at the time of such transaction, make appropriate provision or cause
appropriate provision to be made so that holders of each share of
Convertible Preferred Stock then outstanding shall have the right
thereafter to convert such share of Convertible Preferred Stock into the
kind and amount of shares of stock and other securities and property
receivable upon such consolidation, merger, sale, transfer or share
exchange by a holder of the number of shares of Common Stock into which
such share of Convertible Preferred Stock could have been converted
immediately prior to the effective date of such consolidation, merger,
sale, transfer or share exchange. If in connection with any such
consolidation, merger, sale, transfer or share exchange, each holder of
shares of Common Stock is entitled to elect to receive either securities,
cash or other assets upon completion of such transaction, the Corporation
shall provide or cause to be provided to each holder of Convertible
Preferred Stock the right to elect the securities,
- 7 -
<PAGE>
cash or other assets into which the Convertible Preferred Stock held by
such holder shall be convertible after completion of any such transaction
on the same terms and subject to the same conditions applicable to holders
of the Common Stock (including, without limitation, notice of the right to
elect, limitations on the period in which such election shall be made and
the effect of failing to exercise the election).
(b) In case the Corporation shall (i) pay a dividend or make a
distribution on its Common Stock in shares of its capital stock, (ii)
subdivide its outstanding Common Stock into a greater number of shares,
(iii) combine the shares of its outstanding Common Stock into a smaller
number of shares, or (iv) issue by reclassification of its Common Stock any
shares of its capital stock, then in each such case the Conversion Rate in
effect immediately prior thereto shall be proportionately adjusted so that
the holder of any Convertible Preferred Stock thereafter surrendered for
conversion shall be entitled to receive, to the extent permitted by
applicable law, the number and kind of shares of capital stock of the
Corporation which such holder would have owned or have been entitled to
receive after the happening of such event had such Convertible Preferred
Stock been converted immediately prior to the record date for such event
(or if no record date is established in connection with such event, the
effective date for such action). An adjustment pursuant to this
subparagraph (b) shall become effective immediately after the record date
in the case of a stock dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision,
combination or reclassification.
(c) In case the Corporation shall issue rights or warrants to all
holders of the Common Stock entitling such holders on the record date
referred to below to subscribe for or purchase Common Stock at a price per
share less than the average of the daily Closing Prices of the Common Stock
(as defined in Section 7) on the 30 consecutive business days commencing 45
business days before such record date (the "Current Market Price"), then in
each such case the Conversion Rate in effect on such record date shall be
adjusted in accordance with the formula
O + N
C/1/ = C x -----
O + N x P
-----
M
where
C/1/ = the adjusted Conversion Rate.
C = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
- 8 -
<PAGE>
M = the Current Market Price per share of Common Stock on the record
date./1/
Such adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive such rights or
warrants. If all of the shares of Common Stock subject to such rights or
warrants have not been issued when such rights or warrants expire, then the
Conversion Rate shall promptly be readjusted to the Conversion Rate which
would be in effect had the adjustment upon the issuance of such rights or
warrants been made on the basis of the actual number of shares of Common
Stock issued upon the exercise of such rights or warrants.
(d) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness
or assets (including securities, but excluding any rights or warrants to
purchase securities of the Corporation referred to in subparagraph (c)
above, any dividend or distribution paid in cash out of the retained
earnings of the Corporation and any dividend or distribution referred to in
subparagraph (b) above), then in each such case the Conversion Rate then in
effect shall be adjusted in accordance with the formula
M
C/1/ = C x -----
M - F
where
C1 = the adjusted Conversion Rate. C = the current Conversion Rate.
M = the Current Market Price per share of Common Stock on the record
date mentioned below.
F = the amount of such cash dividend and/or the fair market value on
the record date of the assets, securities, rights or warrants to
be distributed divided by the number of shares of Common Stock
outstanding on the record date. The
- --------
/1/ This formula assumes that the market value per share of the Common Stock
after issuance and exercise of the rights will equal the Corporation's market
capitalization before issuance of the rights (O times M) plus the consideration
received upon exercise of the rights (N times P), divided by the new total
number of shares outstanding (O plus N). It gives the preferred shareholder the
right to purchase the same dollar value of Common Stock (based on the new
assumed market value per share) that he could have purchased before issuance of
the rights (based on the market price per share before such issuance). I.e., if
C=2 and M=$20, the preferred holder could purchase $40 worth of Common Stock for
each share of preferred before rights are issued (2 times $20). If O=100, N=50,
and P=$15, the new assumed market value per share of Common Stock is $18.33
($2000 plus $750, divided by 150). Under the formula, the new conversion rate is
2.18. This new rate again entitles the preferred holder to purchase $40 worth
Common Stock for each share of preferred, based on the new assumed market value
per share (2.18 times $18.33).
- 9 -
<PAGE>
Board of Directors of the Corporation shall determine in good
faith such fair market value./2/
Such adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive such dividend or
distribution.
(e) All calculations hereunder shall be made to the nearest cent or to
the nearest 1/100 of a share, as the case may be.
(f) In the event that at any time, as a result of an adjustment made
pursuant to subparagraph (a) or (b) above, the holder of any Convertible
Preferred Stock thereafter surrendered for conversion shall become entitled
to receive securities, cash or assets other than Common Stock, the number
or amount of such securities or property so receivable upon conversion
shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Common Stock contained in subparagraphs (a) through (e) above.
Except as otherwise provided above in this Section 8, no adjustment in the
Conversion Rate shall be made in respect of any conversion for share
distributions or dividends theretofore declared and paid or payable on the
Common Stock.
Whenever the Conversion Rate is adjusted as herein provided, the
Corporation shall send to each transfer agent for the Convertible Preferred
Stock and the Common Stock, and to the principal securities exchange, if any, on
which the Convertible Preferred Stock and the Common Stock is traded, or the
NASDAQ National Market System if the Convertible Preferred Stock or Common Stock
is admitted for quotation thereon, a statement signed by the Chairman of the
Board, the President or any Vice President of the Corporation and by its
Treasurer or its Secretary stating the adjusted Conversion Rate determined as
provided in this Section 8; and any adjustment so evidenced, given in good
faith, shall be binding upon all shareholders and upon the Corporation. Whenever
the Conversion Rate is adjusted, the Corporation shall give notice by mail at
the time of,
- --------
/2/ This formula assumes that the market value per share of the Common Stock
after the distribution will equal the market price per share before the
distribution (M) minus the value of the distribution per share (F). It gives the
preferred shareholder the right to purchase the same dollar value of Common
Stock (based on the new assumed market value per share) that he could have
purchased before the distribution (based on the market price per share before
such distribution). I.e., if C=2 and M=$20, the preferred holder could purchase
$40 worth of Common Stock for each share of preferred before the distribution (2
times $20). If the amount of the distribution per share (F) is $5, the new
assumed market value per share of Common Stock is $15 ($20 minus $5). Under the
formula, the new conversion rate is 2.67. This new rate again entitles the
preferred holder to purchase $40 worth of Common Stock for each share of
preferred, based on the new assumed market value per share (2.67 times $15).
- 10 -
<PAGE>
and together with, the next dividend payment to the holders of record of
Convertible Preferred Stock, setting forth the adjustment and the new Conversion
Rate and Conversion Price. Notwithstanding the foregoing notice provisions,
failure by the Corporation to give such notice or a defect in such notice shall
not affect the binding nature of such corporate action of the Corporation.
Whenever the Corporation shall propose to take any of the actions specified
in subparagraphs (a), (b), (c) or (d) of the first paragraph of this Section 8
which would result in any adjustment in the Conversion Rate, the Corporation
shall cause a notice to be mailed at least 30 days prior to the date on which
the books of the Corporation will close or on which a record will be taken for
such action to the holders of record of the outstanding Convertible Preferred
Stock on the date of such notice. Such notice shall specify the action proposed
to be taken by the Corporation and the date as of which holders of record of the
Common Stock shall participate in any such actions or be entitled to exchange
their Common Stock for securities or other property, as the case may be. Failure
by the Corporation to give such notice or any defect in such notice shall not
affect the validity of the transaction.
Notwithstanding any other provision of this Section 8, no adjustment in the
Conversion Rate need be made (A) for a transaction referred to in subparagraphs
(a), (b), (c) or (d) of the first paragraph of this Section 8 if holders of
Convertible Preferred Stock are to participate in the transaction or
distribution on such a basis and with such notice as the Board of Directors
determines in good faith to be fair to the holders of the Convertible Preferred
Stock and appropriate in light of the basis and notice on which holders of
Common Stock participate in the transaction; (B) for sales of Common Stock
pursuant to a plan for reinvestment of dividends on Common Stock, provided that
the purchase price in any such sale is at least equal to 95% of the market price
of the Common Stock at the time of such sales; (C) for sales of Common Stock
pursuant to any plan adopted by the Corporation for the benefit of its employees
or consultants, provided that such plan has been approved by the Corporation's
independent directors, or pursuant to any plan for the benefit of the
Corporation's directors, provided that such plan has been approved by the
Corporation's shareholders; (D) for a change in par value of the Common Stock
not involving a subdivision or combination described in clause (ii) or (iii) of
subparagraph (b) of the first paragraph of this Section 8; or (E) after the
Convertible Preferred Stock becomes convertible solely into cash (and no
interest shall accrue on the cash).
SECTION 9. CONVERTIBLE PREFERRED STOCK NOT REDEEMABLE AT OPTION OF HOLDERS
OR EXCHANGEABLE; NO SINKING FUND. The Convertible Preferred Stock shall not be
redeemable upon the request of holders thereof or exchangable for other capital
stock or indebtedness of the Corporation or other property. The Convertible
Preferred Stock shall not be subject to the operation of a purchase, retirement
or sinking fund.
- 11 -
<PAGE>
SECTION 10. VOTING RIGHTS. The holders of Convertible Preferred Stock shall
not have any voting rights except as set forth below or as otherwise from time
to time required by law. Whenever dividends on the Convertible Preferred Stock
shall be in arrears in an amount equal to at least __________ dividends (whether
or not consecutive), the holders of the Convertible Preferred Stock (voting
separately as a single class with all other affected classes or series of Parity
Dividend Stock upon which like voting rights have been conferred and are then
exercisable) will be entitled to vote for and elect two additional directors.
Such right of the holders of Convertible Preferred Stock to vote for the
election of such two directors may be exercised at any annual meeting or at any
special meeting called for such purpose as hereinafter provided or at any
adjournment thereof, until dividends in default on such outstanding shares of
Convertible Preferred Stock shall have been paid in full (or such dividends
shall have been declared and funds sufficient therefor set apart for payment),
at which time the term of office of the two directors so elected shall terminate
automatically (subject to revesting in the event of each and every subsequent
default of the character specified in the preceding sentence and to any
continuing rights of holders of such Parity Dividend Stock). So long as such
right to vote continues, the Secretary of the Corporation shall call, upon the
written request of the holders of record of at least 10% of the outstanding
shares of Convertible Preferred Stock addressed to him or her at the principal
office of the Corporation or, if such a request is not made, upon his or her own
motion, a special meeting of the holders of such shares (and of such Parity
Dividend Stock, if any) for the election of such two directors, as provided
herein. Such meeting shall be held not less than 45 or more than 90 days after
the accrual of such right, at the place and upon the notice provided by law and
in the by-laws of the Corporation for the holding of meetings of shareholders.
No such special meeting or adjournment thereof shall be held on a date less than
30 days before an annual meeting of shareholders or any special meeting in lieu
thereof; provided, that at such annual meeting appropriate provisions are made
to allow the holders of the Convertible Preferred Stock (and of such Parity
Dividend Stock, if any) to exercise such right at such meeting. If at any such
annual or special meeting or any adjournment thereof the holders of a majority
of the then outstanding shares of Convertible Preferred Stock (and of such
Parity Dividend Stock, if any) entitled to vote in such election shall be
present or represented by proxy, then the authorized number of directors of the
Corporation shall be increased by two, and the holders of Convertible Preferred
Stock (voting separately as a single class with all such Parity Dividend Stock,
if any) shall be entitled to elect such two additional directors. Directors so
elected shall serve until the next annual meeting or until their successors
shall be elected and shall qualify, unless the term of office of the persons so
elected as directors shall have terminated by virtue of the payment in full of
all dividends in arrears (or such dividends shall have been declared and funds
sufficient therefor set apart for payment). In case of any vacancy occurring
among the directors so elected by the holders of Convertible Preferred Stock
(and of such Parity Dividend Stock, if any), the remaining director who shall
have been so elected may appoint a successor to hold office for the unexpired
term of the director whose place shall be vacant, and such successor shall be
deemed to have been elected by the holders of Convertible Preferred Stock (and
of such Parity Dividend Stock, if any). If both directors so elected by the
holders of Convertible Preferred Stock (and of such Parity Dividend
- 12 -
<PAGE>
Stock, if any) shall cease to serve as directors before their terms shall
expire, the holders of Convertible Preferred Stock (and of such Parity Dividend
Stock, if any) then outstanding and entitled to vote for such directors may, at
a special meeting of such holders called as provided above, elect successors to
hold office for the unexpired terms of the directors whose places shall be
vacant.
SECTION 11. CERTAIN ACTIONS NOT TO BE TAKEN WITHOUT VOTE OF HOLDERS OF
CONVERTIBLE PREFERRED STOCK. Without the consent or affirmative vote of the
holders of at least a majority of the outstanding shares of Convertible
Preferred Stock, voting separately as a class, the Corporation shall not
authorize, create or issue any shares of any other class or series of capital
stock ranking senior to the Convertible Preferred Stock as to dividends or upon
liquidation. [The affirmative vote or consent of the holders of at least a
majority of the outstanding shares of the Convertible Preferred Stock, voting
separately as a class, shall be required for any amendment, alteration or
repeal, whether by merger or consolidation or otherwise, of the Corporation's
Articles of Incorporation (including any certificate of designations
establishing any class or series of Preferred Stock of the Corporation) if the
amendment, alteration or repeal adversely affects the rights or preferences of
the Convertible Preferred Stock; provided, however, that any increase in the
authorized Preferred Stock of the Corporation or the creation and issuance of
any other capital stock of the Corporation ranking on a parity with or junior to
the Convertible Preferred Stock shall not be deemed to materially affect such
powers, preferences or special rights.]
SECTION 12. OUTSTANDING SHARES. For purposes of this Certificate of
Designations, all shares of Convertible Preferred Stock shall be deemed
outstanding except for (a) shares of Convertible Preferred Stock held of record
or beneficially by the Corporation or any subsidiary of the Corporation; (b)
from the date of surrender of certificates representing Convertible Preferred
Stock for conversion pursuant to Section 7, all shares of Convertible Preferred
Stock which have been converted into Common Stock or other securities or
property pursuant to Section 7; and (c) from the date fixed for redemption
pursuant to Section 6, all shares of Convertible Preferred Stock which have been
called for redemption, provided that funds necessary for such redemption are
available therefor and have been irrevocably deposited or set aside for such
purpose.
SECTION 13. STATUS OF CONVERTIBLE PREFERRED STOCK UPON RETIREMENT. Shares
of Convertible Preferred Stock which are acquired or redeemed by the Corporation
or converted pursuant to Section 7 shall return to the status of authorized and
unissued shares of Preferred Stock of the Corporation without designation as to
series. Upon the acquisition or redemption by the Corporation or conversion
pursuant to Section 7 of all outstanding shares of Convertible Preferred stock,
all provisions of this Certificate of Designations shall cease to be of further
effect. Upon the occurrence of such event, the Board of Directors of the
Corporation shall have the power, pursuant to Minnesota Statutes, Section
302A.135, Subd. 5 or any successor provision and without shareholder action, to
cause restated articles of incorporation of the Corporation or other appropriate
documents to be prepared and filed with the Secretary of State of the State of
Minnesota which
- 13 -
<PAGE>
reflect such removal of all provisions relating to the Convertible Preferred
Stock and/or the cancellation of this Certificate of Designations./3/
IN WITNESS WHEREOF, [name of corporation] has caused this certificate to be
signed by [name of officer], its [title], this _____ day of __________, ____.
UNITED HEALTHCARE CORPORATION
By
--------------------------------------
[Name of signer]
[Title of signer]
- --------
/3/ If shares are exchangeable, add appropriate references in this paragraph to
such event.
- 14 -
<PAGE>
EXHIBIT 4.19
UNITED HEALTHCARE CORPORATION
----------
CERTIFICATE OF DESIGNATIONS
FOR
$ PREFERRED STOCK, SERIES
(PURSUANT TO MINNESOTA STATUTES, SECTION 302A.401, SUBD. 3(B))
----------
The undersigned, being the [corporate title] of United HealthCare
Corporation (the "Corporation"), a corporation organized and existing under the
Minnesota Business Corporation Act, in accordance with the provisions of
Minnesota Statutes, Section 302A.401, Subd. 3(b), does hereby certify that:
Pursuant to the authority vested in the Board of Directors of the
Corporation by the Articles of Incorporation of the Corporation, the Board of
Directors on [specify date], in accordance with Minnesota Statutes, Section
302A.401, Subd. 3, duly adopted the following resolution establishing a series
of [number] shares of the Corporation's Preferred Stock, to be designated as its
$__________ Preferred Stock, Series __________:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation (the "Board of Directors") by the Articles of Incorporation
of the Corporation, the Board of Directors hereby establishes a series of $
Preferred Stock, Series __________, of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights and preferences,
of such series of shares as follows:
$____ PREFERRED STOCK, SERIES ____
SECTION 1. DESIGNATION; NUMBER OF SHARES. The shares of such series shall
be designated as "$__________ Preferred Stock, Series __________" (the "Series
__________ Preferred Stock"), and the number of shares constituting the Series
__________ Preferred Stock shall be [number].
SECTION 2. PAR VALUE; NO CUMULATIVE VOTING; NO PREEMPTIVE RIGHTS. [As
provided in Article[____] of the Corporation's Articles of Incorporation,] the
Series __________ Preferred Stock shall have a par value of $__________ per
share. [As provided in Article [____] of the Corporation's Articles of
Incorporation,] holders of Series __________ Preferred Stock shall not be
<PAGE>
entitled to cumulate their votes in any election of directors in which they are
entitled to vote and shall not be entitled to any preemptive rights to acquire
shares of any class or series of capital stock of the Corporation.
SECTION 3. RANK. The Series __________ Preferred Stock shall rank prior to
all of the Corporation's Common Stock, par value $__________ per share (the
"Common Stock"), now outstanding or hereafter issued, both as to payment of
dividends and as to distributions of assets upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary.
SECTION 4. DIVIDENDS AND DISTRIBUTIONS. The holders of shares of Series
__________ Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available for such
purpose, dividends at the rate of $__________ per annum per share, and no more.
Such dividends shall be fully cumulative, shall accumulate without interest from
the date of original issuance of the Series __________ Preferred Stock and shall
be payable __________ in arrears in cash on each __________ and __________
commencing [specify first payment date] (provided, that if any such date is a
Saturday, Sunday or legal holiday in the place where such dividend is to be
paid, then such dividend shall be payable without interest on the next day that
is not a Saturday, Sunday or legal holiday) to holders of record as they appear
on the stock books of the Corporation on such record dates as shall be fixed by
the Board of Directors. Such record dates shall be not more than 60 nor less
than 10 days preceding the respective dividend payment dates. The amount of
dividends payable per share of Series __________ Preferred Stock for each full
__________ dividend period shall be computed by dividing the annual dividend
amount by __________. The amount of dividends payable for the initial dividend
period and for any other period shorter than a full __________ dividend period
shall be computed on the basis of a 360-day year of twelve 30-day months. No
dividends or other distributions, other than dividends payable solely in shares
of Common Stock or other capital stock of the Corporation ranking junior as to
payment of dividends to the Series __________ Preferred Stock (such Common Stock
and other capital stock being referred to herein collectively as "Junior
Dividend Stock"), shall be paid or set apart for payment on, and no purchase,
redemption or other acquisition shall be made by the Corporation of, any shares
of Junior Dividend Stock unless and until all accumulated and unpaid dividends
on the Series __________ Preferred Stock, including the full dividend for the
then-current __________ dividend period, shall have been paid or declared and
set apart for payment.
If at any time any dividend on any capital stock of the Corporation ranking
senior as to payment of dividends to the Series __________ Preferred Stock (such
capital stock being referred to herein as "Senior Dividend Stock") shall be in
default, in whole or in part, no dividend shall be paid or declared and set
apart for payment on the Series __________ Preferred Stock unless and until all
accumulated and unpaid dividends with respect to the Senior Dividend Stock,
including the full dividend for the then-current dividend period, shall have
been paid or declared and set apart for payment, without interest. No full
dividends shall be paid or declared and set apart for payment on any capital
stock of the Corporation ranking, as to payment of dividends, on a parity with
the Series
2
<PAGE>
__________ Preferred Stock (such capital stock being referred to herein as
"Parity Dividend Stock") for any period unless full cumulative dividends have
been, or contemporaneously are, paid or declared and set apart for payment on
the Series __________ Preferred Stock for all dividend periods terminating on or
prior to the date of payment of such full cumulative dividends. No full
dividends shall be paid or declared and set apart for payment on the Series
__________ Preferred Stock for any period unless full cumulative dividends have
been, or contemporaneously are, paid or declared and set apart for payment on
any Parity Dividend Stock for all dividend periods terminating on or prior to
the date of payment of such full cumulative dividends. When dividends are not
paid in full upon the Series __________ Preferred Stock and any Parity Dividend
Stock, all dividends paid or declared and set apart for payment upon shares of
Series __________ Preferred Stock and Parity Dividend Stock shall be paid or
declared and set apart for payment pro rata, so that the amount of dividends
paid or declared and set apart for payment per share on the Series __________
Preferred Stock and the Parity Dividend Stock shall in all cases bear to each
other the same ratio that accumulated and unpaid dividends per share on the
shares of Series __________ Preferred Stock and Parity Preferred Stock bear to
each other.
Any reference to "distribution" contained in this Section 4 shall not be
deemed to include any distribution made in connection with a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary.
SECTION 5. LIQUIDATION PREFERENCE. In the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
the holders of Series __________ Preferred Stock shall be entitled to receive
out of the assets of the Corporation an amount equal to the dividends
accumulated and unpaid thereon to the date of final distribution to such
holders, whether or not declared, without interest, plus a sum equal to
$[__________ ] per share, and no more, before any payment shall be made or any
assets distributed to the holders of Common Stock or any other capital stock of
the Corporation ranking junior as to liquidation rights to the Series __________
Preferred Stock (such Common Stock and other capital stock being referred to
herein collectively as "Junior Liquidation Stock"); provided, that such rights
shall accrue to the holders of Series __________ Preferred Stock only in the
event that the Corporation's payments with respect to the liquidation
preferences of the holders of capital stock of the Corporation ranking senior as
to liquidation rights to the Series __________ Preferred Stock (such capital
stock being referred to herein as "Senior Liquidation Stock") are fully met. The
entire assets of the Corporation available for distribution after the
liquidation preferences of any Senior Liquidation Stock are fully met shall be
distributed ratably among the holders of the Series __________ Preferred Stock
and any other capital stock of the Corporation which ranks on a parity as to
liquidation rights with the Series __________ Preferred Stock in proportion to
the respective preferential amounts to which each is entitled (but only to the
extent of such preferential amounts). After payment in full of the liquidation
preference of the shares of the Series __________ Preferred Stock, the holders
of such shares shall not be entitled to any further participation in any
distribution of assets by the Corporation. Neither a consolidation or merger of
the Corporation with another corporation nor a sale or transfer of all or
3
<PAGE>
part of the Corporation's assets for cash, securities or other property will be
deemed a liquidation, dissolution or winding up of the Corporation for purposes
of this Section 5.
SECTION 6. REDEMPTION AT OPTION OF THE CORPORATION. The Corporation may not
redeem the Series __________ Preferred Stock prior to __________. The
Corporation, at its option, may, on or after __________, redeem at any time all,
or from time to time any portion, of the Series __________ Preferred Stock on
any date set by the Board of Directors, at the following cash redemption prices
per share if redeemed during the periods specified below:
TWELVE MONTHS
BEGINNING , REDEMPTION PRICE
---------------- ----------------
$ $
$ $
_________________ and thereafter $ ,
plus, in each case, an amount per share in cash equal to all dividends on the
Series __________ Preferred Stock accumulated and unpaid on such share, whether
or not declared, to the date fixed for redemption (such sum being hereinafter
referred to as the "Redemption Price").
In case of the redemption of less than all of the then outstanding Series
__________ Preferred Stock, the Corporation shall designate by lot, or in such
other manner as the Board of Directors may determine, the shares to be redeemed,
or shall effect such redemption pro rata. Notwithstanding the foregoing, the
Corporation shall not redeem less than all of the Series __________ Preferred
Stock at any time outstanding until all dividends accumulated and in arrears
upon all Series __________ Preferred Stock then outstanding shall have been paid
for all past dividend periods.
Not more than 60 nor less than 30 days prior to the redemption date, notice
by first class mail, postage prepaid, shall be given to the holders of record of
the Series __________ Preferred Stock to be redeemed, addressed to such
shareholders at their last addresses as shown on the stock books of the
Corporation. Each such notice of redemption shall specify the date fixed for
redemption, the redemption price, the place or places of payment, that payment
of the Redemption Price will be made upon presentation and surrender of
certificates representing the shares of Series __________ Preferred Stock, that
accumulated but unpaid dividends to the date fixed for redemption will be paid
on the date fixed for redemption, and that on and after the redemption date,
dividends will cease to accumulate on such shares.
Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not a holder of the Series
__________ Preferred Stock receives such notice; and failure so to give such
notice, or any defect in such notice, to the holders of any shares designated
for redemption shall not affect the validity of the proceedings for the
redemption of any
4
<PAGE>
other shares of Series __________ Preferred Stock. On or after the date fixed
for redemption as stated in such notice, each holder of the shares called for
redemption shall surrender the certificate or certificates evidencing such
shares to the Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the Redemption Price. If fewer than
all the shares represented by any such surrendered certificate or certificates
are redeemed, a new certificate shall be issued representing the unredeemed
shares. If, on the date fixed for redemption, funds necessary for the redemption
shall be available therefor and shall have been irrevocably deposited or set
aside, then, notwithstanding that the certificates evidencing any shares so
called for redemption shall not have been surrendered, the dividends with
respect to the shares so called shall cease to accumulate on and after the date
fixed for redemption, such shares shall no longer be deemed outstanding, the
holders thereof shall cease to be shareholders, and all rights whatsoever with
respect to such shares (except the right of the holders thereof to receive the
Redemption Price without interest upon surrender of their certificates) shall
terminate.
SECTION 7. SERIES __________ PREFERRED STOCK NOT REDEEMABLE AT OPTION OF
HOLDERS, EXCHANGEABLE OR CONVERTIBLE; NO SINKING FUND. The Series __________
Preferred Stock shall not be redeemable upon the request of holders thereof or
exchangable for other capital stock or indebtedness of the Corporation or other
property. The Series __________ Preferred Stock shall not be convertible into
other capital stock of the Corporation. The Series __________ Preferred Stock
shall not be subject to the operation of a purchase, retirement or sinking fund.
SECTION 8. VOTING RIGHTS. The holders of Series __________ Preferred Stock
shall not have any voting rights except as set forth below or as otherwise from
time to time required by law. Whenever dividends on the Series __________
Preferred Stock shall be in arrears in an amount equal to at least __________
__________ dividends (whether or not consecutive), the holders of the Series
__________ Preferred Stock (voting separately as a single class with all other
affected classes or series of Parity Dividend Stock upon which like voting
rights have been conferred and are then exercisable) will be entitled to vote
for and elect two additional directors. Such right of the holders of Series
__________ Preferred Stock to vote for the election of such two directors may be
exercised at any annual meeting or at any special meeting called for such
purpose as hereinafter provided or at any adjournment thereof, until dividends
in default on such outstanding shares of Series __________ Preferred Stock shall
have been paid in full (or such dividends shall have been declared and funds
sufficient therefor set apart for payment), at which time the term of office of
the two directors so elected shall terminate automatically (subject to revesting
in the event of each and every subsequent default of the character specified in
the preceding sentence and to any continuing rights of holders of such Parity
Dividend Stock). So long as such right to vote continues, the Secretary of the
Corporation shall call, upon the written request of the holders of record of at
least 10% of the outstanding shares of Series __________ Preferred Stock
addressed to him or her at the principal office of the Corporation or, if such a
request is not made, upon his or her own motion, a special meeting of the
holders of such shares (and of such Parity Dividend Stock, if any) for the
election of such two directors, as provided herein. Such meeting shall be held
not less than 45 or more than 90
5
<PAGE>
days after the accrual of such right, at the place and upon the notice provided
by law and in the by-laws of the Corporation for the holding of meetings of
shareholders. No such special meeting or adjournment thereof shall be held on a
date less than 30 days before an annual meeting of shareholders or any special
meeting in lieu thereof; provided, that at such annual meeting appropriate
provisions are made to allow the holders of the Series __________ Preferred
Stock (and of such Parity Dividend Stock, if any) to exercise such right at such
meeting. If at any such annual or special meeting or any adjournment thereof the
holders of a majority of the then outstanding shares of Series __________
Preferred Stock (and of such Parity Dividend Stock, if any) entitled to vote in
such election shall be present or represented by proxy, then the authorized
number of directors of the Corporation shall be increased by two, and the
holders of Series __________ Preferred Stock (voting separately as a single
class with all such Parity Dividend Stock, if any) shall be entitled to elect
such two additional directors. Directors so elected shall serve until the next
annual meeting or until their successors shall be elected and shall qualify,
unless the term of office of the persons so elected as directors shall have
terminated by virtue of the payment in full of all dividends in arrears (or such
dividends shall have been declared and funds sufficient therefor set apart for
payment). In case of any vacancy occurring among the directors so elected by the
holders of Series __________ Preferred Stock (and of such Parity Dividend Stock,
if any), the remaining director who shall have been so elected may appoint a
successor to hold office for the unexpired term of the director whose place
shall be vacant, and such successor shall be deemed to have been elected by the
holders of Series __________ Preferred Stock (and of such Parity Dividend Stock,
if any). If both directors so elected by the holders of Series __________
Preferred Stock (and of such Parity Dividend Stock, if any) shall cease to serve
as directors before their terms shall expire, the holders of Series __________
Preferred Stock (and of such Parity Dividend Stock, if any) then outstanding and
entitled to vote for such directors may, at a special meeting of such holders
called as provided above, elect successors to hold office for the unexpired
terms of the directors whose places shall be vacant.
SECTION 9. CERTAIN ACTIONS NOT TO BE TAKEN WITHOUT VOTE OF HOLDERS OF
SERIES __________ PREFERRED STOCK. Without the consent or affirmative vote of
the holders of at least a majority of the outstanding shares of Series
__________ Preferred Stock, voting separately as a class, the Corporation shall
not authorize, create or issue any shares of any other class or series of
capital stock ranking senior to the Series __________ Preferred Stock as to
dividends or upon liquidation. [The affirmative vote or consent of the holders
of at least a majority of the outstanding shares of the Series __________
Preferred Stock, voting separately as a class, shall be required for any
amendment, alteration or repeal, whether by merger or consolidation or
otherwise, of the Corporation's Articles of Incorporation (including any
certificate of designations establishing any class or series of Preferred Stock
of the Corporation) if the amendment, alteration or repeal adversely affects the
rights or preferences of the Series __________ Preferred Stock; provided,
however, that any increase in the authorized Preferred Stock of the Corporation
or the creation and issuance of any other capital stock of the Corporation
ranking on a parity with or junior to the Series __________ Preferred Stock
shall not be deemed to materially affect such powers, preferences or special
rights.]
6
<PAGE>
SECTION 10. OUTSTANDING SHARES. For purposes of this Certificate of
Designations, all shares of Series __________ Preferred Stock shall be deemed
outstanding except for (a) shares of Series __________ Preferred Stock held of
record or beneficially by the Corporation or any subsidiary of the Corporation,
and (b) from the date fixed for redemption pursuant to Section 6, all shares of
Series __________ Preferred Stock which have been called for redemption,
provided that funds necessary for such redemption are available therefor and
have been irrevocably deposited or set aside for such purpose.
SECTION 11. STATUS OF SERIES __________ PREFERRED STOCK UPON RETIREMENT.
Shares of Series __________ Preferred Stock which are acquired or redeemed by
the Corporation shall return to the status of authorized and unissued shares of
Preferred Stock of the Corporation without designation as to series. Upon the
acquisition or redemption by the Corporation of all outstanding shares of Series
__________ Preferred stock, all provisions of this Certificate of Designations
shall cease to be of further effect. Upon the occurrence of such event, the
Board of Directors of the Corporation shall have the power, pursuant to
Minnesota Statutes, Section 302A.135, Subd. 5 or any successor provision and
without shareholder action, to cause restated articles of incorporation of the
Corporation or other appropriate documents to be prepared and filed with the
Secretary of State of the State of Minnesota which reflect such removal of all
provisions relating to the Series __________ Preferred Stock and/or the
cancellation of this Certificate of Designations.
IN WITNESS WHEREOF, [name of corporation] has caused this certificate to be
signed by [name of officer], its [title], this __________ day of ______________,
_______.
UNITED HEALTHCARE CORPORATION
By
------------------------------------
[Name of signer]
[Title of signer]
7
<PAGE>
Exhibit 4.20
- --------------------------------------------------------------------------------
UNITED HEALTHCARE CORPORATION
, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY SHARES DESCRIBED HEREIN
---------------
DEPOSIT AGREEMENT
---------------
DATED AS OF ____________
<PAGE>
TABLE OF CONTENTS
Page
----
PARTIES.................................................................. 1
RECITALS................................................................. 1
ARTICLE I
Definitions
Certificate.............................................................. 1
Company.................................................................. 1
Deposit Agreement........................................................ 1
Depositary............................................................... 1
Depositary Shares........................................................ 1
Depositary's Agent....................................................... 1
Depositary's Office...................................................... 2
Receipt.................................................................. 2
Record Holder............................................................ 2
Registrar................................................................ 2
Stock.................................................................... 2
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
Section 2.01. Form and Transfer of Receipts............................. 2
Section 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof............................ 3
Section 2.03. Redemption of Stock....................................... 4
i
<PAGE>
Section 2.04. Registration of Transfer of Receipts...................... 5
Section 2.05. Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock................. 6
Section 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of Receipts.............. 6
Section 2.07. Lost Receipts, etc........................................ 7
Section 2.08. Cancellation and Destruction of Surrendered Receipts...... 7
ARTICLE III
Certain Obligations of the Holders
of Receipts and the Company
Section 3.01. Filing Proofs, Certificates and Other Information......... 7
Section 3.02. Payment of Taxes or Other Governmental Charges............ 8
Section 3.03. Warranty as to Stock...................................... 8
ARTICLE IV
The Deposited Securities; Notices
Section 4.01. Cash Distributions........................................ 8
Section 4.02. Distributions Other than Cash............................. 8
Section 4.03. Subscription Rights, Preferences or Privileges............ 9
Section 4.04. Notice of Dividends, etc.; Fixing of Record
Date for Holders of Receipts.............................. 9
Section 4.05. Voting Rights.............................................10
Section 4.06. Changes Affecting Deposited Stock and
Reclassification, Recapitalizations, etc..................10
Section 4.07. Inspection of Reports.....................................11
Section 4.08. Lists of Holders..........................................12
ii
<PAGE>
ARTICLE V
The Depositary, the Depositary's Agents,
The Registrar and the Company
Section 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar.............................................12
Section 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents,
any Registrar or the Company..........................12
Section 5.03. Obligations of the Depositary, the
Depositary's Agents, any Registrar and
the Company...........................................13
Section 5.04. Resignation and Removal of the Depositary;
Appointments of Successor Depositary..................14
Section 5.05. Corporate Notices and Reports.............................15
Section 5.06. Indemnification by the Company............................15
Section 5.07. Charges and Expenses......................................15
ARTICLE VI
Amendment and Termination
Section 6.01. Amendment.................................................16
Section 6.02. Termination...............................................16
ARTICLE VII
Miscellaneous
Section 7.01. Counterparts..............................................16
Section 7.02. Exclusive Benefit of Parties..............................16
Section 7.03. Invalidity of Provisions..................................16
Section 7.04. Notices...................................................16
iii
<PAGE>
Section 7.05. Depositary's Agents.......................................17
Section 7.06. Holders of Receipts Are Parties...........................18
Section 7.07. Governing Law.............................................18
Section 7.08. Inspection of Deposit Agreement...........................18
Section 7.09. Headings..................................................18
Testimonium..............................................................
Signatures...............................................................
Exhibits A: Form of Reverse of Depositary Receipt
iv
<PAGE>
DEPOSIT AGREEMENT
This Deposit Agreement (this "Agreement") is made and entered into as of
__________,____ among United HealthCare Corporation, a Minnesota corporation,
and _______, a ____________ corporation, and the holders from time to time of
the shares described herein.
RECITALS
WHEREAS it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of [describe series of] Preferred Stock,
without par value, of _______________ with the Depositary (as hereinafter
defined) for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts (as hereinafter defined) evidencing Depositary
Shares (as hereinafter defined) in respect of the Stock (as hereinafter defined)
so deposited;
NOW, THEREFORE, in consideration of the premises, 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 and the
Receipts:
"Certificate" shall mean the certificate of designations filed with the
Secretary of State of Minnesota establishing the Stock as a series of preferred
stock of the Company.
"Company" shall mean United HealthCare Corporation, a Minnesota
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 a
[describe fraction] interest in a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
- 1 -
<PAGE>
"Depositary's Office" shall mean the office of the Depositary at ______, in
_____________, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall mean
the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be appointed
to register ownership and transfers of Depositary Shares as herein provided.
"Stock" shall mean the Company's [describe series of] Preferred Stock,
without par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Form and Transfer of Receipts. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.02, 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 third paragraph of Section 2.02, 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 Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
- 2 -
<PAGE>
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 manual signature of 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 facsimile signature of a duly authorized officer of the
Depositary and countersigned manually 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 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 Company or 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 the 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 Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.04, 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 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company may from time to time deposit shares of 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 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 relating to such deposited Stock. The Depositary Shares, upon
issuance, delivery and payment therefor will be validily issued, fully paid and
nonassesssable.
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.
- 3 -
<PAGE>
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
so deposited 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 relating to 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.
Other than in the case of splits, combinations or other reclassifications
affecting the Stock, or in the case of dividends or other distributions of
Stock, if any, there shall be deposited hereunder not more than _______ shares
of Stock.
Section 2.03. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such proposed redemption , by first class mail, postage
prepaid, not less than 30 nor more than 60 days prior to the date fixed for
redemption in accordance with Section 3.4 of the Certificate. On the date of
such redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed, plus any accrued
and unpaid dividends thereon, the Depositary shall redeem the Depositary Shares
relating to such Stock. The Depositary shall mail notice of such redemption and
the proposed simultaneous redemption of the number of Depositary Shares relating
to the Stock to be redeemed, by first-class paid postage prepaid, not less than
30 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
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither the failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to 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 underlying the Depositary Shares to be redeemed will cease
to accumulate at the close of business 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 lot or pro rata as may be
determined by the Depositary 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 redeem the shares
of Stock to be
- 4 -
<PAGE>
redeemed by it as set forth in the Company's notice provided for in the
preceding paragraph) all dividends in respect of the Depositary Shares so called
for redemption shall cease to accumulate, the Depositary Shares being redeemed
from such proceeds shall be deemed no longer to be outstanding, 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, upon surrender in accordance with such notice of the
Receipts evidencing any such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to [insert fraction referred to in definition of "Depositary Shares"] of the
redemption price per share paid in respect of the shares of Stock plus all money
and other property, if any, underlying 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 less than all 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.
Section 2.04. 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 Depositary Shares upon any surrender of the
Receipt or Receipts evidencing such Depositary Shares 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 2.05. Split-ups and Combinations of Receipts; Surrender of
Depositary Shares 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 of 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
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered. Any holder of at least [insert
reciprocal of fraction referred to in definition of "Depositary Shares"]
Depositary Shares may withdraw the number of whole shares of Stock underlying
such Depositary Shares and all money and other property, if any, relating
thereto by surrendering Receipts evidencing such Depositary Shares 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, underlying the Depositary Shares so surrendered for
withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit
- 5 -
<PAGE>
such Stock hereunder or to receive Depositary Shares therefor. If a Receipt
delivered by a holder to the Depositary in connection with such withdrawal shall
evidence a number of Depositary Shares relating to other than a number of whole
shares of Stock, 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 (subject to Section 3.02) 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 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 Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of Stock, such
holder 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.
Delivery of the Stock and money and other property, if any, underlying the
Depositary Shares 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 Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
Section 2.06. 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 5.07, 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 delivery of Receipts against Stock may be suspended, the registration
of transfer of Depositary Shares may be refused and the registration of
transfer, surrender or exchange of outstanding Depositary Shares 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 2.07. 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
- 6 -
<PAGE>
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 with
reasonable indemnification satisfactory to it.
Section 2.08. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proof, Certificates and Other Information. Any holder
of a Depositary Share 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 Depositary Share or the withdrawal of any Stock underlying
Depositary Shares 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 3.02. Payment of Taxes or Other Governmental Charges. Holders of
Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property underlying such
Depositary Share 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 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 Depositary Share remaining liable for any deficiency.
Section 3.03. Warrants as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
- 7 -
<PAGE>
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to the record holders of
Depositary Shares on the record date fixed pursuant to Section 4.04 such amounts
of such dividend or distribution as are, as nearly as practicable, in proportion
to the respective number of Depositary Shares 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, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to record holders of Depositary
Shares then outstanding.
Section 4.02. Distributions Other than Cash. Whenever the Depositary shall
receive any distribution other than cash on the Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to the record holders of
Depositary Shares on the record date fixed pursuant to Section 4.04 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 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 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Depositary Shares as provided by Section 4.01 in
the case of a distribution received in cash. The Company shall not make any
distribution of such securities unless the Company shall have provided an
opinion of counsel stating that such securities have been registered under the
Securities Act of 1933 or that such registration is not required.
Section 4.03. 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
- 8 -
<PAGE>
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 Depositary Shares 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 the holders of
Depositary Shares by the issue of warrants or otherwise, or (ii) if and to the
extent so instructed by holders of Depositary Shares who do not desire to
exercise such rights preferences or privileges, then the Depositary, in its
discretion (with the 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 terns 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
terns as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed by the Depositary to the record holders
of Depositary Shares entitled thereto as provided by Section 4.01 in the case of
a distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges, unless the Company shall have provided
an opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act of 1933 or that such registration is
not required.
If registration under the Securities Act of 1933 of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Depositary Shares 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 Depositary Shares any right, preference or privilege to subscribe
for or to purchase any securities unless and until such a registration statement
shall have become effective, or unless the offering and sale of such securities
to such holders may be made without registration under the provisions of such
Act.
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 the holders of
Depositary Shares, the Company agrees with the Depositary that the Company will
use its 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 right, preferences or
privileges.
- 9 -
<PAGE>
Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders
of Depositary Shares. 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
the 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, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the holders of Depositary Shares
who shall be entitled to receive a distribution in respect of 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 receive notice of such meeting.
Section 4.05. Voting Rights. Upon receipt of notice of any meeting at which
holders of the Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Depositary Shares a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.04, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instruction set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting
instructions are received. The Company hereby agrees to take all 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 Depositary Share, the Depositary will abstain
from voting (but, at its discretion, not from appearing at any meeting with
respect to such Stock unless directed to the contrary by the holders of all the
Depositary Shares) to the extent of the Stock underlying such Depositary Share.
Section 4.06. Changes Affecting Deposited Stock and Reclassifications,
Recapitalizations, etc. Upon any change in par or liquidation value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion, upon any recapitalization, reorganization, merger, amalgamation 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 in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a share of
Stock, in each case as may be necessary fully to reflect the effects of such
change in par or liquidation value, split up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be
- 10 -
<PAGE>
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 of 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.
Section 4.07. Inspection of Reports. The Depositary shall make available
for inspection by any holder of Depositary Shares at the Depositary's Office,
and at such other places as it may from time to time deem advisable, any reports
and communications received from the Company which are received by the
Depositary as the holder of the Stock, and the Depositary will forward to the
record holders of the Depositary Shares, at their respective addresses, any such
reports or communications that are not required to be delivered by the Company
to the record holders of the Depositary Shares pursuant to Section 5.05.
Section 4.08. List of Holders. Promptly upon request from time to time by
the Company, the Depositary shall furnish to it a list, as of a recent date, of
the name, address and holdings of Depositary Shares of all persons in whose
names Depositary Shares are registered on the books of the Depositary.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
Section 5.01. 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, or at any Registrar's Office, at
which the Depositary shall have complete access to all books and records
maintained on the Company's behalf, facilities for the execution and delivery,
surrender and exchange of Receipts and the registration of transfer of
Depositary Shares, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of the Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration, and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the record holders of
Depositary Shares.
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.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock Exchange
or other securities
- 11 -
<PAGE>
exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange or such other exchange. Such Registrar
(which may be the Depositary if so permitted by the requirements of such
Exchange or such other exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of Company.
Section 5.02. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, any Registrar of 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 Depositary Shares 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, any Depositary Agent or any Registrar, by reason of any provision,
present or future, of the Company's Certificate of Incorporation (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, any Depositary's Agent, any
Registrar or the Company shall be prevented or forbidden from 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 any liability to any holder of a Depositary
Share (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
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 case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
Section 5.03. Obligations of the Depositary, the Depositary's Agents, any
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 Depositary Shares other
than for its gross negligence or willful misconduct.
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 proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity reasonably satisfactory to it against all expense and liability
be furnished.
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 Depositary Share 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,
- 12 -
<PAGE>
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 any of the shares of Stock or for the manner or effect of
any such vote, as long as any such action or non-action is taken 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
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered 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 the Depositary acting hereunder shall at any time 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 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
Depositary Shares. Any successor Depositary shall promptly mail notice of its
appointment to the record holder of Depositary Shares.
Any corporation into or with which the Depositary may merge, consolidate or
be converted shall be the successor of such Depositary without the execution or
filing of any
- 13 -
<PAGE>
document or, any further act. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
Section 5.05. Corporate Notices and Resorts. The Company agrees that it
will transmit to the record holders of Depositary Shares, in each case at the
address furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, the rules
of any securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company' Certificate of Incorporation (including
the Certificate) to be furnished by the Company to holders of the Stock. Such
transmission will be at the Company's expense
Section 5.06. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless form, any loss, liability or expense (including the costs and
expense of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Deposit Agreement and the Depositary Shares (a)
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence or
bad faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Depositary Shares or the Stock pursuant to the provisions hereof. The
obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
Section 5.07. Charges and Expenses. The Company shall pay all transfer and
other taxes and governmental charges arising 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
Receipts, any redemption of the Stock at the option of the Company and any
withdrawals of Stock by holders of Depositary Shares. 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 a Depositary Shares 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, any Depositary's Agent hereunder and any
Registrar (including, in each case, fees and expense 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 times as the Company
and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. 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
- 14 -
<PAGE>
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 Depositary Shares)
which shall materially and adversely alter the rights of the existing holders of
the Depositary Shares will be effect 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 Depositary Share at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Depositary Share, to consent and agree to such amendment and to be bound by this
Deposit Agrees as amended thereby.
Section 6.02. Termination. This Deposit Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03 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 4.01 or
4.02, 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, and Depositary's Agent and any Registrar
under Section 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
Section 7.01. 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 and original, but all such counterparts taken together shall
constitute one and the same instrument.
Section 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successor
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.03. 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 7.04. 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 telegram or telex,
confirmed by letter, addressed to the Company at 300 Opus Center, 9900 Bren Road
East, Minnetonka, Minnesota 55343, to the
- 15 -
<PAGE>
attention of ____________, 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 telex, confirmed by
letter, addressed to the Depositary at the Depositary's Office, at ___________,
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 Depositary Share
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
telecopy 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 telecopy 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 telecopy) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telecopy received by it from the
other or from any holder of a Depositary Share, notwithstanding that such
telegram or telecopy shall not subsequently be confirmed by letter or as
aforesaid.
Section 7.05. Depositary Agents. The Depositary may from time to time, with
the prior approval of the Company, appoint Depositary Agents to act in any
respect of the Depositary for the purposes of this Deposit Agreement and may at
any time appoint additional Depositary Agents and vary or terminate the
appointment of such Depositary Agents.
Section 7.06. Holders of Receipts Are Parties. The holders of Depositary
Shares 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 evidencing
such Depositary Shares by acceptance of delivery thereof.
Section 7.07. 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
MINNESOTA.
Section 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Depositary Share.
- 16 -
<PAGE>
Section 7.09. 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
Deposit Agreement as of the day and year first above set forth, and all holders
of Depositary Shares shall become parties hereto by and upon acceptance by them
of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
UNITED HEALTHCARE CORPORATION
By
----------------------------
Authorized Officer
[Name of Depositary]
By
----------------------------
Authorized Officer
- 17 -
<PAGE>
EXHIBIT A
NO.:_____________ DEPOSITARY SHARES:______________
DR:______________ CERTIFICATE FOR NOT MORE THAN
_______ DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING [CONVERTIBLE] PREFERRED STOCK, SERIES __,
OF UNITED HEALTHCARE CORPORATION INCORPORATED UNDER THE LAWS
OF THE STATE OF MINNESOTA
CUSIP NO:____________
[See Reverse For Certain Definitions]
____________________________________, AS DEPOSITARY (THE "DEPOSITARY"),
HEREBY CERTIFIES THAT:
_________________________ is the registered owner of ________ Depositary Shares
("Depositary Shares"), each Depositary Share representing ______ of one share of
[Convertible] Preferred Stock, Series ___, par value $__________ per share, of
United HealthCare Corporation, a Minnesota corporation (the "Corporation"), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of __________, ______, (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 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 and shall have
been countersigned manually by a Registrar or by the Depositary as Registrar in
respect of the Depositary Receipts by the manual signature of a duly authorized
officer thereof.
<PAGE>
Dated:
---------------------
[DEPOSITARY AND REGISTRAR]
By:
---------------------------
Its:
-----------------------
Attest:
By:
----------------------------
Its:
------------------------
Countersigned and Registered:
- -------------------------------
Authorized Signature
UNITED HEALTHCARE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND
WITHOUT CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS,
AND RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE
ISSUED, SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF
DIRECTORS TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES
OR SERIES.
A-2
<PAGE>
---------------------------------------------
ABBREVIATIONS
The following abbreviations, when used in this instrument, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--_______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
-----------------------
(State)
Additional abbreviations may be used though not in the above list.
---------------------------------
A-3
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
---------------------------- -----------
/ --------------------------------------/
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address,
including postal zip code of assignee)
- --------------------------------------------------------------------------------
the within Receipt and all rights thereunder and hereby irrevocably constitutes
and appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
to transfer said Depositary Shares on the books of the within named Depositary,
with full power of substitution in the premises.
Dated
--------------------- -----------------------------------------------
NOTICE: The signature on this assignment must
correspond with the name as written upon the
face of the within Receipt in every particular,
without alteration or enlargement or any change
whatsoever.
- --------------------------
Signature Guarantee
SIGNATURE GUARANTEE: Signatures must be guaranteed by an "eligible
institution" meeting the requirements of the [Registrar], which requirements
include membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the [Registrar] in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as amended.
A-4
<PAGE>
EXHIBIT 4.22
- --------------------------------------------------------------------------------
UNITED HEALTHCARE CORPORATION
AND
________________________, AS WARRANT AGENT
FORM OF COMMON STOCK
WARRANT AGREEMENT
DATED AS OF ___________________
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PARTIES......................................................................1
RECITALS.....................................................................1
SECTION 1. Appointment of Warrant Agent.....................................1
SECTION 2. Form of Warrant..................................................1
SECTION 3. Countersignature and Registration................................2
SECTION 4. Transfers and Exchanges..........................................2
SECTION 5. Exercise of Warrants.............................................3
SECTION 6. Payment of Taxes.................................................3
SECTION 7. Mutilated or Missing Warrants....................................4
SECTION 8. Reservation of Shares, etc. .....................................4
SECTION 9. Warrant Price; Adjustments.......................................4
SECTION 10. Notice to Warrantholders........................................11
SECTION 11. Certain Covenants of the Company................................12
SECTION 12. Disposition of Proceeds, etc....................................12
SECTION 13. Merger or Consolidation or Change of Name of Warrant Agent......12
SECTION 14. Duties of Warrant Agent.........................................13
SECTION 15. Change of Warrant Agent.........................................15
SECTION 16. Identity of Transfer Agent......................................16
SECTION 17. Notices.........................................................16
SECTION 18. Supplements and Amendments......................................17
- i -
<PAGE>
SECTION 19. Successors.....................................................17
SECTION 20. Governing Law..................................................17
SECTION 21. Benefits of This Agreement.....................................17
SECTION 22. Counterparts...................................................17
SECTION 23. Acceleration of Warrants by the Company........................17
- ii -
<PAGE>
UNITED HEALTHCARE CORPORATION
Form of Common Stock Warrant Agreement
COMMON STOCK WARRANT AGREEMENT, dated as of between United HealthCare
Corporation, a Minnesota corporation (hereinafter called the "Company"), and
____________ having a corporate trust office in ____________, as warrant agent
(hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue [Class ____] Purchase Warrants
(hereinafter called the "Warrants") entitling the holders thereof to purchase an
aggregate of ____ shares of Common Stock of the Company (par value $____ per
share) (hereinafter called the "Shares") at an initial cash purchase price of
$____ per Share at any time [after __________ and] prior to [____] p.m., [City]
time, on _______ (hereinafter called the "Expiration Date") (unless extended as
provided in Section 9A hereof); and
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT -
WHEREAS, the Warrants will be offered in Units, each of which consists of
___________ and Warrants to purchase ________ Shares; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange and exercise of Warrants to be issued
from time to time by the Company,
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. Form of Warrant. The text of the Warrants and the form of
election to purchase Shares to be set forth on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. Each Warrant shall,
subject to the terms of this Warrant Agreement, entitle the registered holder
thereof to initially purchase the number of Shares specified therein at an
initial exercise price of $_____ per Share; provided, however, that the Warrant
Exercise Price and the number of Shares issuable upon exercise of Warrants are
subject to adjustment upon the occurrence of certain events, all as hereinafter
provided. The Warrants shall be executed on behalf of the Company by the manual
or facsimile signature of the present or any future Chairman of the Board,
President or Vice President of the Company, under its seal, affixed or in
facsimile, and by the manual or facsimile signature of the present or any future
Secretary or Assistant Secretary of the Company.
<PAGE>
The Company shall promptly notify the Warrant Agent from time to time in
writing of the number of Warrants to be issued and furnish written instructions
in connection therewith signed by an executive officer of the Company; such
notification and instructions may, but need not be, in the form of a general or
continuing authorization to the Warrant Agent.
The Warrants shall be dated by the Warrant Agent as of the date of each
initial issuance, and as of the date of issuance thereof upon any transfer or
exchange thereof.
SECTION 3. Countersignature and Registration. The Warrant Agent shall
maintain books for the transfer and registration of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective registered holders thereof. The Warrants
shall be countersigned by the Warrant Agent (or by any successor to the Warrant
Agent then acting as warrant agent under this Agreement) and shall not be valid
for any purpose unless so countersigned. Such Warrants may be so countersigned,
however, by the Warrant Agent (or by its successor as warrant agent) and be
delivered by the Warrant Agent, notwithstanding that the persons whose manual or
facsimile signatures appear thereon as proper officers of the Company shall have
ceased to be such officers at the time of such countersignature or delivery.
Upon issuance of any Warrant, the Company will present the same, or cause the
same to be presented, to the Warrant Agent for countersignature of such Warrant.
SECTION 4. Transfers and Exchanges. The Warrant Agent shall transfer, from
time to time, any outstanding Warrants upon the books to be maintained by the
Warrant Agent for that purpose, upon the surrender thereof for transfer properly
endorsed or accompanied by appropriate instructions for transfer. Upon any such
transfer, a new Warrant of like tenor shall be issued to the transferee and the
surrendered Warrant shall be canceled by the Warrant Agent. All such Warrants so
canceled shall be delivered by the Warrant Agent to the Company from time to
time. The Warrants may be exchanged at the option of the holder thereof, when
surrendered at the office in of the Warrant Agent, for another Warrant, or other
Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of Shares. The Warrant Agent is
hereby irrevocably authorized to countersign and deliver, in accordance with the
provisions of this Section and Section 3 of this Agreement, such new Warrants
required pursuant to the provisions of this Section, and the Company, whenever
required by the Warrant Agent, will supply the Warrant Agent with Warrants duly
executed on behalf of the Company for such purpose.
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT -
Notwithstanding the foregoing, until ____________, the Warrants shall not
be transferable apart from the __________ to which they are attached, any
transfer of the ___________ shall be deemed a transfer of the Warrants attached
thereto, and any attempt to transfer the Warrants apart from the _________ shall
be void and of no effect. Each Warrant shall contain a legend to the foregoing
effect.]
- 2 -
<PAGE>
SECTION 5. Exercise of Warrants. The registered holder of each Warrant
shall have the right, which may be exercised as in such Warrant expressed, to
purchase from the Company (and the Company shall issue and sell to such
registered holder) the number of Shares specified in such Warrants, upon
surrender to the Company, at the office in _______________ of the Warrant Agent
of such Warrant, with the form of election to purchase on the reverse thereof
duly filled in and signed, and upon payment to the Warrant Agent for the account
of the Company of the Warrant Exercise Price, determined in accordance with the
provisions of Section 9 of this Agreement, for the number of Shares in respect
of which such Warrant is then exercised. Payment of such Warrant Exercise Price
may be made in cash, or by certified check or bank draft or postal or express
money order, payable in United States dollars, to the order of the Warrant
Agent. No adjustment shall be made for any dividends on any Shares issuable upon
exercise of any Warrant. Subject to Section 6, upon such surrender of Warrants,
and payment of the Warrant Exercise Price as aforesaid, the Company shall issue
and cause to be delivered with all reasonable dispatch to or upon the written
order of the registered holder of such Warrants, and in such name or names as
such registered holder may designate, a certificate or certificates for the
number of full Shares so purchased upon the exercise of such Warrants, together
with cash, as provided in Section 9 of this Agreement, in respect of any
fraction of a Share otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
Shares as of the date of the surrender of such Warrants and payment of the
Warrant Exercise Price as aforesaid; provided, however, that if, at the date of
surrender of such Warrants and payment of such Warrant Exercise Price, the
transfer books for the Shares purchasable upon the exercise of such Warrants
shall be closed, no such surrender of such Warrants and no such payment of such
Warrant Exercise Price shall be effective to constitute the person so designated
to be named therein as the holder of record of such Shares on such date, but
shall be effective to constitute such person as the holder of record of such
Shares for all purposes at the opening of business on the next succeeding day on
which the transfer books for the Shares purchasable upon the exercise of such
Warrants shall be opened, and the certificates for the Shares in respect of
which such Warrants are then exercised shall be issuable as of the date on which
such books shall next be opened, and until such date the Company shall be under
no duty to deliver any certificate for such Shares. The rights of purchase
represented by the Warrants shall be exercisable, at the election of the
registered holders thereof, either as an entirety or from time to time for part
only of the Shares specified therein and, in the event that any Warrant is
exercised in respect of less than all of the Shares specified therein at any
time prior to the Expiration Date of the Warrants, a new Warrant or Warrants of
like tenor will be issued for the remaining number of Shares specified in the
Warrant so surrendered, and the Warrant Agent is hereby irrevocably authorized
to countersign and to deliver the required new Warrants pursuant to the
provisions of this Section and of Section 3 of this Agreement, and the Company,
whenever required by the Warrant Agent, will supply the Warrant Agent with
Warrants duly executed on behalf of the Company for such purpose.
SECTION 6. Payment of Taxes. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Shares issuable upon the exercise
of Warrants; provided,
- 3 -
<PAGE>
however, that the Company shall not be required to pay any tax or taxes which
may be payable in respect of any transfer involved in the issue or delivery of
any certificates for Shares in a name other than that of the registered holder
of Warrants in respect of which such Shares are issued and the Company shall not
be required to issue and deliver the certificates for such Shares unless and
until the holder has paid to the Company the amount of any tax which may be
payable in respect of any transfer involved in such issuance or shall establish
to the satisfaction of the Company that such tax has been paid.
SECTION 7. Mutilated or Missing Warrants. In case any of the Warrants shall
be mutilated, lost, stolen or destroyed, the Company will issue and the Warrant
Agent will countersign and deliver in exchange and substitution for and upon
cancellation of the mutilated Warrant, or in lieu of and substitution for the
Warrant lost, stolen or destroyed, a new Warrant of like tenor and representing
an equivalent right or interest, but only upon receipt of evidence satisfactory
to the Company and the Warrant Agent of such loss, theft or destruction of such
Warrants and indemnity, if requested, also satisfactory to them. Applicants for
such substitute Warrants shall also comply with such other reasonable
regulations and pay such other reasonable charges as the Company or the Warrant
Agent may prescribe. Any such new Warrant shall constitute an original
contractual obligation of the Company whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
SECTION 8. Reservation of Shares, etc. Prior to the issuance of any
Warrants there shall have been reserved, and the Company shall at all times
through the Expiration Date keep reserved, out of its authorized and unissued
Common Stock, a number of Shares sufficient to provide for the exercise of the
rights of purchase represented by the Warrants, and the Transfer Agent for the
Shares and every subsequent Transfer Agent for the Shares issuable upon the
exercise of any of the rights of purchase aforesaid are hereby irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued Shares as shall be requisite for such purpose. The Company will keep a
copy of this Agreement on file with the Transfer Agent for the Shares and with
every subsequent Transfer Agent for the Shares issuable upon the exercise of the
rights of purchase represented by the Warrants. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
certificates required to honor outstanding Warrants that have been exercised.
The Company will supply such Transfer Agent with duly executed certificates for
such purpose and will itself provide or otherwise make available any cash which
may be issuable as provided in Section 9 of this Agreement. All Warrants
surrendered in the exercise of the rights thereby evidenced or surrendered for
transfer, exchange or partial exercise shall be canceled by the Warrant Agent
and shall thereafter be delivered to the Company.
SECTION 9. Warrant Price; Adjustments. A. The warrant price per share at
which Shares shall be purchasable upon exercise of Warrants (herein called the
"Warrant Exercise Price") to and including the Expiration Date (unless the
Expiration Date is extended as provided below in this Section 9A) shall be $____
per share, or, if adjusted as provided in this Section, shall be such price as
so adjusted. The Warrants will not be exercisable prior to [the close of
- 4 -
<PAGE>
business on the date of any initial issuance thereof] [______] and will expire
at [______] p.m., [City] time, on the Expiration Date; provided 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 17 hereof a notice stating that the Expiration Date has
been extended and setting forth the new Expiration Date.
B. The above provision is, however, subject to the following:
(1) The warrant purchase price, the number of Shares purchasable upon
exercise of each Warrant and the number of Warrants outstanding shall be
subject to adjustment as follows:
(a) In case the Company shall at any time after the date of this
Agreement (i) pay a dividend, or make a distribution, on the Common
Stock which is payable in shares of its capital stock (whether shares
of Common Stock or of capital stock of any other class), (ii)
subdivide or reclassify its outstanding shares of Common Stock into a
greater number of securities (including shares of Common Stock), or
(iii) combine or reclassify its outstanding shares of Common Stock
into a smaller number of shares (including shares of Common Stock),
the number of shares purchasable upon exercise of each Warrant
immediately prior to the occurrence of such event shall be adjusted so
that the holder of each Warrant shall be entitled to receive upon
payment of the warrant purchase price the aggregate number of shares
of the Company which, if such Warrant had been exercised immediately
prior to the occurrence of such event, such holder would have owned or
have been entitled to receive immediately after the occurrence of such
event. An adjustment made pursuant to this subparagraph (a) shall
become effective immediately after the record date in the case of a
dividend and shall become effective immediately after the effective
date in the case of a subdivision or combination. If, as a result of
an adjustment made pursuant to this subparagraph (a), the holder of
any Warrant thereafter exercised shall become entitled to receive
shares of two or more classes of capital stock of the Company, the
Board of Directors of the Company (whose determination shall be
conclusive) shall determine the allocation between or among shares of
such classes of capital stock.
- 5 -
<PAGE>
In the event that at any time, as a result of an adjustment made
pursuant to this subparagraph (a), the holder of any Warrant
thereafter exercised shall become entitled to receive any shares or
other securities of the Company other than shares of Common Stock,
thereafter the number of such other shares so received upon exercise
of any Warrant shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares of Common Stock contained in
this paragraph, and other provisions of this paragraph 9B(1) with
respect to the shares of Common Stock shall apply on like terms to any
such other shares or other securities.
(b) In case the Company shall fix a record date for the issuance
of rights or warrants to all holders of its Common Stock entitling
them (for a period expiring within 45 days after such record date) to
subscribe for or purchase Common Stock at a price per share less than
the current market price per share of Common Stock (as defined in
subparagraph (e) below) at such record date, the warrant purchase
price shall be determined by multiplying the warrant purchase price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of Shares of Common Stock
outstanding on such record date plus the number of Shares of Common
Stock which the aggregate offering price of the total number of Shares
so offered would purchase at such current market price, and the
denominator of which shall be the number of Shares of Common Stock
outstanding on such record date plus the number of additional Shares
of Common Stock offered for subscription or purchase. Such adjustment
shall be made successively whenever such a record date is fixed, and
shall become effective immediately after such record date. In
determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of common stock at less than such
current market price, and in determining the aggregate offering price
of such shares, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors of the Company. Common Stock owned by or held for the
account of the Company or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment required under
this subparagraph (b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock of evidences of its
indebtedness or assets (excluding regular quarterly or other periodic
or recurring cash dividends or distributions and cash dividends or
distributions paid from retained earnings or referred to in
subparagraph (a) above) or rights or warrants to subscribe or warrants
to purchase
- 6 -
<PAGE>
(excluding those referred to in subparagraph (b) above), then in each
such case the warrant purchase price shall be determined by
multiplying the warrant purchase price in effect immediately prior to
such record date by a fraction (x) the numerator of which shall be
such current market price (as defined in subparagraph (e) below) per
Share of Common Stock on such record date, less the then fair market
value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription
rights or warrants applicable to one share of the Common Stock and (y)
the denominator of which shall be the current market price per share
of the Common Stock on such record date. Such adjustment shall be made
successively whenever such a record date is fixed and shall become
effective immediately after such record date. Notwithstanding the
foregoing, in the event that the Company shall distribute any rights
or warrants to acquire capital stock ("Rights") pursuant to this
subparagraph (c), the distribution of separate certificates
representing such Rights subsequent to their initial distribution
(whether or not such distribution shall have occurred prior to the
date of the issuance of such Warrants) shall be deemed to be the
distribution of such Rights for purposes of this subparagraph (c),
provided that the Company may, in lieu of making any adjustment
pursuant to this subparagraph (c) upon a distribution of separate
certificates representing such Rights, make proper provision so that
each holder of such Warrants who exercises such Warrants (or any
portion thereof) (A) before the record date for such distribution of
separate certificates shall be entitled to receive upon such exercise
shares of Common Stock issued with Rights and (B) after such record
date and prior to the expiration, redemption or termination of such
Rights shall be entitled to receive upon such exercise, in addition to
the shares of Common Stock issuable upon such exercise, the same
number of such Rights as would a holder of the number of shares of
Common Stock that such Warrants so exercised would have entitled the
holder thereof to purchase in accordance with the terms and provisions
of and applicable to the Rights if such Warrants were exercised
immediately prior to the record date for such distribution. Common
Stock owned by or held for the account of the Company or any majority
owned subsidiary shall not be deemed outstanding for the purpose of
any adjustment required under this subparagraph (c).
(d) After each adjustment of the number of shares purchasable
upon exercise of each Warrant pursuant to subparagraph 9B(1)(a), the
Warrant Exercise Price shall be adjusted by multiplying such Warrant
Exercise Price immediately prior to such adjustment by a fraction of
which the numerator shall be the number of Shares purchasable upon
exercise of
- 7 -
<PAGE>
each Warrant immediately prior to such adjustment, and the denominator
of which shall be the number of Shares so purchasable immediately
thereafter. After each adjustment of the Warrant Exercise Price
pursuant to subparagraph 9B(1)(b) or (c), the total number of Shares
or fractional part thereof purchasable upon the exercise of each
Warrant shall be proportionately adjusted to such number of shares or
fractional parts thereof as the aggregate Warrant Exercise Price of
the number of shares or fractional part thereof purchasable
immediately prior to such adjustment will buy at the adjusted Warrant
Exercise Price.
(e) For the purpose of any computation under subparagraphs
9B(1)(b) and (c) above, the current market price per Share of Common
Stock at any date shall be deemed to be the average of the daily
closing prices for the 30 consecutive business days commencing 45
business days before the day in question. The closing price for each
day shall be (i) if the Common Stock is listed or admitted for trading
on the New York Stock Exchange, the last sale price (regular way), or
the average of the closing bid and ask prices (regular way), if no
sale occurred, of Common Stock, in either case as reported on the New
York Stock Exchange Composite Tape or, if the Common Stock is not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which the Common Stock is
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, (ii) if not listed or quoted as
described in (i), the mean between the closing high bid and low asked
quotations of Common Stock reported by NASDAQ, or any similar system
for automated dissemination of quotations of securities prices then in
common use, if so quoted, or (iii) if not quoted as described in
clause (ii), the mean between the high bid and low asked quotations
for Common Stock as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted both bid
and asked quotations for Common Stock on at least 5 of the 10
preceding days. If none of the conditions set forth above is met, the
closing price of Common Stock on any day or the average of such
closing prices for any period shall be the fair market value of Common
Stock as determined by a member firm of the New York Stock Exchange
selected by the Company.
(f) (A) Nothing contained herein shall be construed to require an
adjustment as a result of the issuance of Common Stock pursuant to, or
the granting or exercise of any rights under, the Company's [List
employee and shareholder plans, if any, that might otherwise result in
adjustments].
- 8 -
<PAGE>
(B) In addition, no adjustment in the Warrant Exercise Price
shall be required unless and until the earlier of the following
shall have occurred: (x) such adjustment would require an
increase or decrease of at least 1% in the Warrant Exercise Price
or (y) a period of 3 years shall have elapsed from the date of
the occurrence of any event requiring any such adjustment
pursuant to subparagraphs 9B(1)(a), (b) or (c) above. All
adjustments shall be made to the nearest one hundredth of a Share
and the nearest cent, and any adjustments which by reason of this
subparagraph (f) are not required to be made shall be carried
forward cumulatively and taken into account in any subsequent
adjustment which (including such carry-forward) is required to be
made under this subparagraph (f).
(g) In any case in which this subparagraph 9B(1) shall require
that an adjustment be made retroactively immediately following a
record date, the Company may elect to defer (but only until five
business days following the mailing of the notice described in
subparagraph 9B(5) below) issuing to the holder of any Warrant
exercised after such record date the Shares of the Company issuable
upon such exercise over and above the Shares issuable upon such
exercise only on the basis of the Warrant Exercise Price prior to
adjustment.
(h) The Company may, at its option, at any time until the
Expiration Date, reduce the then current Warrant Exercise Price to any
amount deemed appropriate by the Board of Directors of the Company for
any period not exceeding twenty (20) consecutive days (as evidenced in
a resolution adopted by such Board of Directors), but only upon giving
the notices required by subparagraph 9(B)(5) twenty (20) days prior to
taking such action.
(i) Except as herein otherwise expressly provided, no adjustment
in the Warrant Exercise Price shall be made by reason of the issuance
of Shares, or securities convertible into or exchangeable for Shares,
or securities carrying the right to purchase any of the foregoing or
for any other reason whatsoever.
(j) Irrespective of any of the adjustments in the Warrant
Exercise Price or the number of Shares, Warrant Certificates
theretofore issued may continue to express the same prices and number
of Shares as are stated in a similar Warrant Certificate issuable
initially, or at some subsequent time, pursuant to this Agreement and
such number of Shares specified therein shall be deemed to have been
so adjusted.
- 9 -
<PAGE>
(2) No fractional Shares of Common Stock shall be issued upon the
exercise of Warrants. If more than one Warrant shall be exercised at one
time by the same holder, the number of full Shares which shall be issuable
upon such exercise shall be computed on the basis of the aggregate number
of Shares purchased pursuant to the Warrants so exercised. Instead of any
fractional Share of Common Stock which would otherwise be issuable upon
exercise of any Warrant, the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the last sales
price (or bid price if there were no sales) per Share of Common Stock, in
either case as reported on the New York Stock Exchange Composite Tape on
the business day which next precedes the day of exercise or, if the Common
Stock is not then listed or admitted to trading on the New York Stock
Exchange, an amount equal to the same fraction of the market price per
share of Common Stock (as determined in a manner described by the Board of
Directors of the Company) at the close of business on the business day
which next precedes the day of exercise.
(3) In case any of the following shall occur while any Warrants are
outstanding: (a) any reclassification or change of the outstanding Shares
of Common Stock (other than a change in par value, or from par value to no
par value, or from no par value to par value); or (b) any consolidation or
merger to which the Company is a party (other than a consolidation or a
merger in which the Company is the continuing corporation and which does
not result in any reclassification of, or change in, the outstanding shares
of Common Stock issuable upon exercise of the Warrants); or (c) any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety; then the Company, or such
successor or purchasing corporation, as the case may be, shall make
appropriate provision by amendment of this Agreement or otherwise so that
the holders of the Warrants then outstanding shall have the right at any
time thereafter, upon exercise of such Warrants, to purchase the kind and
amount of shares of stock and other securities and property receivable upon
such reclassification, change, consolidation, merger, sale or conveyance as
would be received by a holder of the number of shares of Common Stock
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Such
provision shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section 9.
The above provisions of this subparagraph 9B(3) shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales or
conveyances.
(4) Before taking any action which would cause an adjustment
decreasing the Warrant Exercise Price so that the Warrant Exercise Price is
below the then par value of the shares of Common Stock, the Company will
take any corporate action which may, in the opinion of its counsel, be
necessary in order that the
- 10 -
<PAGE>
Company may validly and legally issue fully paid and nonassessable Shares
of Common Stock at the Warrant Exercise Price as so adjusted.
(5) Whenever the Warrant Exercise Price then in effect is adjusted as
herein provided, the Company shall mail to each holder of the Warrants at
such holder's address as it shall appear on the books of the Company a
statement setting forth the adjusted Warrant Exercise Price then and
thereafter effective under the provisions hereof, together with the facts,
in reasonable detail, upon which such adjustment is based.
(6) In case (i) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
current or retained earnings, or (ii) the Company shall authorize the
granting to the holders of its Common Stock of rights to subscribe for or
purchase any shares of capital stock of any class or of any other rights,
or (iii) there is to be any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding shares
of Common Stock), or any consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required, or (iv) any distribution is to be made on or in respect of the
Common Stock in connection with the dissolution, liquidation or winding up
of the Company, then the Company shall mail to each holder of Warrants at
such holder's address as it shall appear on the books of the Company, at
least twenty days (or ten days in any case specified in clause (i) or (ii)
above) prior to the applicable record date hereinafter specified, a notice
stating (x) the record date for such dividend, distribution or rights, or,
if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution or rights are
to be determined, or (y) the date on which such reclassification,
consolidation, merger, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, dissolution, liquidation or
winding up. No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect any such transaction or any adjustment in the
Warrant Exercise Price required by this Section 9.
SECTION 10. Notice to Warrantholders. Nothing contained in this Agreement
or in any of the Warrants shall be construed as conferring upon the holders
thereof the right to vote or to consent or to receive notice as shareholders in
respect of the meetings of shareholders or the election of directors of the
Company or any other matter, or any rights whatsoever as shareholders of the
Company.
- 11 -
<PAGE>
SECTION 11. Certain Covenants of the Company.
A. So long as any unexpired Warrants remain outstanding and if required in
order to comply with the Securities Act of 1933, as amended (the "Act"), the
Company covenants and agrees that it will file such post-effective amendments to
the registration statement filed pursuant to the Act with respect to the
Warrants (File No. 333- ) (or such other registration statements or
post-effective amendments or supplements) as may be necessary to permit the
Company to deliver to each person exercising a Warrant a prospectus meeting the
requirements of Section 10(a)(3) of the Act and otherwise complying therewith,
and will deliver such a prospectus to each such person. The Company further
covenants and agrees that it will obtain and keep effective all permits,
consents and approvals of governmental agencies and authorities, and will use
its best efforts to take all action which may be necessary to qualify the Shares
for sale under the securities laws of such of the United States, as may be
necessary to permit the free exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants, and to
maintain such qualifications during the entire period in which the Warrants are
exercisable.
B. The Company covenants and agrees that it shall take all such action as
may be necessary to ensure that all Shares will at the time of delivery of
certificates for such Shares (subject to payment of the Warrant Exercise Price)
be duly and validly authorized and issued and fully paid and nonassessable
Shares, free from any preemptive rights and taxes, liens, charges and security
interests created by or imposed upon the Company.
C. The Company covenants and agrees that it will take all action which may
be necessary to cause the Shares to be duly listed on the New York Stock
Exchange or any securities exchange on which the other shares of Common Stock of
the Company are listed or on the National Market System of NASDAQ at the dates
of exercise of the Warrants.
SECTION 12. Disposition of Proceeds, etc.
A. The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all moneys received by
the Warrant Agent for the purchase of Shares through the exercise of such
Warrants.
B. The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours at its principal
office in the City of __________,____.
SECTION 13. Merger or Consolidation or Change of Name of Warrant Agent. Any
corporation into which the Warrant Agent may be merged or with which it may be
consolidated,
- 12 -
<PAGE>
or any corporation resulting from any merger or consolidation to which the
Warrant Agent shall be a party, or any corporation succeeding to the corporate
trust business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Warrant Agent under the provisions of
Section 15 of this Agreement. In case at the time such successor to the Warrant
Agent shall succeed to the agency created by this Agreement, and if any of the
Warrants shall have been countersigned but not delivered, any such successor to
the Warrant Agent may adopt the countersignature of the original Warrant Agent
and deliver such Warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, any successor to the Warrant Agent
may countersign such Warrants either in the name of the predecessor Warrant
Agent or in the name of the successor Warrant Agent; and in all such cases such
Warrant shall have the full force provided in the Warrants and in this
Agreement.
In case at any time the name of the Warrant Agent shall be changed and at
such time any of the Warrants shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name and
deliver Warrants so countersigned; and in case at that time any of the Warrants
shall not have been countersigned, the Warrant Agent may countersign such
Warrants either in its prior name or in its changed name; and in all such cases
such Warrants shall have the full force provided in the Warrants and in this
Agreement.
SECTION 14. Duties of Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
A. The statements contained herein and in the Warrants shall be taken
as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The
Warrant Agent assumes no responsibility with respect to the distribution of
the Warrants except as herein otherwise provided.
B. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or
in the Warrants to be complied with by the Company.
C. 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, agents or employees, and the Warrant Agent
shall not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys, agents or employees or for any loss to
the Company resulting from such neglect or misconduct, provided reasonable
care shall have been exercised in the selection and continued employment
thereof.
- 13 -
<PAGE>
D. The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company), and the Warrant
Agent shall incur no liability or responsibility to the Company or to any
holder of any Warrant in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the opinion or the
advice of such counsel.
E. The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
F. The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the
execution of this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the execution of this Agreement and
to indemnify the Warrant Agent and save it harmless against any and all
liabilities, including judgments, costs and counsel fees, for anything done
or omitted by the Warrant Agent in the execution of this Agreement except
as a result of the Warrant Agent's gross negligence or bad faith.
G. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of
Warrants shall furnish the Warrant Agent with reasonable security and
indemnity for any costs and expenses which may be incurred, but this
provision shall not affect the power of the Warrant Agent to take such
action as the Warrant Agent may consider proper, whether with or without
any such security or indemnity. All rights of action under this Agreement
or under any of the Warrants may be enforced by the Warrant Agent without
the possession of any of the Warrants or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery of judgment shall be for the ratable
benefit of the registered holders of the Warrants, as their respective
rights or interests may appear.
H. The Warrant Agent and any shareholder, director, officer or
employee of the Warrant Agent may buy, sell or deal in any of the Warrants
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to or otherwise act as fully and freely as though it were not
Warrant Agent under this Agreement. Nothing herein shall preclude the
Warrant Agent from acting in any other capacity for the Company or for any
other legal entity.
- 14 -
<PAGE>
I. The Warrant Agent shall act hereunder solely as agent and not in a
ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which
it may do or refrain from doing in connection with this Agreement except
for its own gross negligence or bad faith.
SECTION 15. Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by giving to the Company notice
in writing, and to the holders of the Warrants notice by publication, of such
resignation, specifying a date when such resignation shall take effect, which
notice shall be published at the expense of the Company at least once a week for
two consecutive weeks in a newspaper of general circulation in the City of
[City] prior to the date so specified. The Warrant Agent may be removed by the
Company by like notice from the Company to the Warrant Agent and the holders of
Warrants at the expense of the Company. If the Warrant Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by the registered holder of a Warrant (who shall,
with such notice, submit his Warrant for inspection by the Company), then, at
the expense of the Company, the Warrant Agent or the registered holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. Any successor Warrant Agent, whether appointed
by the Company or by such a court, shall be a bank or trust company, in good
standing, incorporated under the laws of any State or of the United States of
America, having at the time of its appointment as Warrant Agent a combined
capital and surplus of at least $100,000,000. After appointment the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor Warrant Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Failure to file or publish any notice provided for in this Section,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of the successor
Warrant Agent, as the case may be.
SECTION 16. Identity of Transfer Agent. Forthwith upon the appointment of
any Transfer Agent for the Shares or of any subsequent Transfer Agent for Shares
issuable upon the exercise of the rights of purchase represented by the
Warrants, the Company will file with the Warrant Agent a statement setting forth
the name and address of such Transfer Agent.
SECTION 17. Notices. Any notice pursuant to this Agreement to be given or
made by the Warrant Agent or by the registered holder of any Warrant to or on
the Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent) as follows:
- 15 -
<PAGE>
United HealthCare Corporation
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Attn: Secretary
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
-----------------------------
-----------------------------
-----------------------------
Any notice pursuant to this Agreement to be given or made by the Company or
the Warrant Agent to the registered holder of any Warrant shall be sufficiently
given or made (unless otherwise specifically provided for herein) if sent by
first-class mail, postage prepaid, addressed to said registered holder at his
address appearing on the Warrant register.
SECTION 18. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any holders of Warrants in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the Warrant Agent
may deem necessary or desirable and which will not materially adversely affect
the interest of the registered holders of the Warrants.
SECTION 19. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
SECTION 20. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of [___________].
SECTION 21. Benefits of This Agreement. Nothing in this Agreement shall be
construed to give to any person or entity other than the Company and the Warrant
Agent and the holders of Warrants any legal or equitable right, remedy or claim
under this Agreement, but this Agreement shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and the holders of Warrants.
SECTION 22. Counterparts. This Agreement may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
- 16 -
<PAGE>
[IF THE WARRANTS ARE SUBJECT TO ACCELERATION BY THE COMPANY, INSERT
SECTION 23. Acceleration of Warrants by the Company.
A. At any time on or after , the Company 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 Common Stock equals or
exceeds percent ( %) of the then effective Warrant Exercise Price, adjusted as
if no changes in such Warrant Exercise Price had been made pursuant to
subsection 9B, on any 20 Trading Days (as hereinafter defined) within a period
of 30 consecutive Trading Days ending no more than five Trading Days prior to
the date on which the Company gives notice to the Warrant Agent of its election
to accelerate the Warrants.
B. "Market Price" for each Trading Day shall be, if the Common Stock is
listed or admitted for trading on the New York Stock Exchange, the last reported
sale price, regular way (or, if no such price is reported, the average of the
reported closing bid and asked prices, regular way) of Common Stock, in either
case as reported on the New York Stock Exchange Composite Tape or, if the Common
Stock is not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which Common Stock is not listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of NASDAQ or, if not listed
or admitted to trading on any national securities exchange or quoted on the
National Market System of NASDAQ, the average of the closing 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 Shares of Common Stock 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 that purpose. "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 60 days nor less than 30 days
before the Acceleration Date. Such notice of an acceleration also shall be given
no more than 20 days, and no less than 10 days, prior to the mailing of notice
to registered holders of Warrants pursuant to this
- 17 -
<PAGE>
Section, by publication at least once in a newspaper of general circulation
in the City of New York.
E. Any Warrant accelerated may be exercised until [_____] p.m., [City]
time, on the business day next preceding the Acceleration Date. The Warrant
Exercise Price shall be payable as provided in Section 5]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
UNITED HEALTHCARE CORPORATION
By
---------------------------
Its
------------------------
Attest:
- --------------------
-------------------------, as
Warrant Agent
By
---------------------------
Its
------------------------
Attest:
- --------------------
- 18 -
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[If Warrants are attached to Prior to ________, this Warrant Certificate
Other Securities and are not cannot be transferred or exchanged unless
immediately detachable. attached to a [Title of Other Securities].]
[Form of Legend if Warrants are Prior to ________, Warrants evidenced by
not immediately exercisable. this Warrant Certificate cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [______] P.M., [CITY] TIME, ON __________,____
UNITED HEALTHCARE CORPORATION
Warrants to Purchase
Warrant Certificate Representing
[Title of Warrant Securities]
No._____ _________ Warrants
This certifies that ___________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner [if Warrants are attached to Other Securities and are not immediately
detachable - , subject to the registered owner qualifying as a "Holder" of this
Warrant Certificate, as hereinafter defined) to purchase, at any time [after
[_____] P.M., [City] time, on _______ and] on or before [_____] P.M., [City]
time, on _____________, __________ shares of [Title of Warrant Securities] (the
"Warrant Securities"), of United HealthCare Corporation (the "Company") on the
following basis: during the period from ____________, through and including
__________, the exercise price of each Warrant will be _____________; during the
period from ___________, through and including ___________, the exercise price
of each warrant will be _________(the "Warrant Price"). No adjustment shall be
made for any dividends on any Warrant Securities issuable upon exercise of any
Warrant. The Holder may exercise the Warrants evidenced hereby by providing
A-1
<PAGE>
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 funds, the Warrant Price for each Warrant
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 (the "Warrant Agent"), [or __________], 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 [if Warrants are attached to
Other Securities and are not immediately detachable - prior to ______, ______
(the "Detachable Date"), the registered owner of the Company's [title of Other
Securities] to which this Warrant Certificate was 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 pursuant to Section 4.01 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the Holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of ________,____ (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 the
Holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at __________].
[if Warrants are attached to Other Securities and are not immediately
detachable - Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Other Securities] (the
"Other 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. Additionally, on or prior to the Detachable
Date, each transfer of such Other Security or the register of the Other
Securities shall operate also to transfer this Warrant Certificate. After such
date, transfer of this] [if Warrants are attached to Other Securities and are
not immediately detachable - Transfer of this] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent [or ________] by the registered owner of 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.
[If Other Securities with Warrants which are not immediately detachable -
Except as provided in the immediately preceding paragraph, after] [if Other
Securities with Warrants which
A-2
<PAGE>
are immediately detachable or Warrant alone - 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 _______] for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the Holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation, the
right to receive payments of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its name and on its behalf by the facsimile signatures of its duly authorized
officers.
Dated: _____________,____
UNITED HEALTHCARE CORPORATION
By
------------------------------
Its
---------------------------
Attest:
- --------------------------
Countersigned:
- --------------------------
As Warrant Agent
By
------------------------
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
(Instructions for Exercise of Warrant)
To exercise the Warrants evidenced hereby, the Holder must pay [in United
States dollars] [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
funds], the Warrant Price in full for Warrants exercised, to [Warrant Agent]
[address of Warrant Agent], Attn: ___________, which payment must specify the
name of the Holder and the number of Warrants exercised by such Holder. In
addition, the Holder must complete the information required below and present
this Warrant Certificate in person or by mail (certified or registered mail is
recommended) to the Warrant Agent at the appropriate address set forth below.
This Warrant Certificate, completed and duly executed, must be received by the
Warrant Agent within five business days of the payment.
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _________ Warrants,
evidenced by this Warrant Certificate, to purchase _________ shares of the
[Title of Warrant Securities] (the "Warrant Securities") of United HealthCare
Corporation and represents that he has tendered payment for such Warrant
Securities [in Dollars] [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 funds] to the order of United HealthCare Corporation, c/o [insert name
and address of Warrant Agent], in the amount of _________ in accordance with the
terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form 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:
--------------------------
(Please Print)
Address
- --------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
A-4
<PAGE>
Signature Guaranteed
-------------------------------------------
Signature
[For registered Warrants -- Signature must
conform in all respects to name of holder
as specified on the face of this 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)
This Warrant may be exercised at the following addresses:
By hand at
By mail at
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants - complete as
appropriate.]
A-5
<PAGE>
ASSIGNMENT
(Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, ___________ hereby sells, assigns and transfers unto:
- --------------------------------------------------------------------------------
Print or Type Name
- --------------------------------------------------------------------------------
Street Address
- --------------------------------------------------------------------------------
City State Zip Code
- --------------------------------------------------------------------------------
Social Security or other Identifying Number
the right represented by the within Warrant to purchase _____ Shares of Common
Stock ($_____ par value) of United HealthCare Corporation to which the within
Warrant relates and appoints ______________ attorney to transfer such right on
the books of the Warrant Agent with full power of substitution in the premises.
Dated:_____________
-----------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
Signature Guaranteed
- -----------------------------
A-6
<PAGE>
EXHIBIT 4.24
- --------------------------------------------------------------------------------
UNITED HEALTHCARE CORPORATION
AND
___________________, AS WARRANT AGENT
PREFERRED STOCK
WARRANT AGREEMENT
DATED AS OF ________________
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
Parties.....................................................................1
Recitals....................................................................1
ARTICLE I. ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants.....................................2
SECTION 1.02. Execution and Delivery of Warrant Certificates...........2
SECTION 1.03. Issuance of Warrant Certificates.........................3
ARTICLE II. WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price............................................3
SECTION 2.02. Duration of Warrants.....................................3
SECTION 2.03. Exercise of Warrants.....................................3
ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF
WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates.......................5
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed
Warrant Certificates...................................5
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.........5
SECTION 3.04. Reclassification, Consolidation, Merger, Sale,
Conveyance or Lease......................................5
ARTICLE IV. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates............6
SECTION 4.02. Treatment of Holders of Warrant Certificates.............7
SECTION 4.03. Cancellation of Warrant Certificates.....................7
ARTICLE V. CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent............................................8
SECTION 5.02. Conditions of Warrant Agent's Obligations................8
SECTION 5.03. Resignation and Appointment of Successor.................9
ARTICLE VI. MISCELLANEOUS
SECTION 6.01. Amendment...............................................11
SECTION 6.02. Notices and Demands to the Company and Warrant Agent....11
SECTION 6.03. Addresses...............................................11
SECTION 6.04. Governing Law...........................................11
SECTION 6.05. Delivery of Prospectus..................................11
SECTION 6.06. Obtaining of Governmental Approvals.....................11
i
<PAGE>
SECTION 6.07. Persons Having Rights Under Warrant Agreement...........12
SECTION 6.08. Headings................................................12
SECTION 6.09. Counterparts............................................12
SECTION 6.10. Inspection of Agreement..................................12
ii
<PAGE>
UNITED HEALTHCARE CORPORATION
Form of Preferred Stock Warrant Agreement
PREFERRED STOCK WARRANT AGREEMENT, dated as of __________ between United
HealthCare Corporation, a Minnesota corporation (hereinafter called the
"Company") and ______________________________ as Warrant Agent (herein called
the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold with other
securities - [title of such other securities being offered] (the "Other
Securities") with] warrant certificates evidencing one or more warrants (the
"Warrants" or individually a "Warrant") representing the right to purchase
[title of Preferred Stock purchasable through exercise of Warrants] (the
"Warrant Securities"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
- ----------
* Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants, Warrant Securities and Other
Securities.
<PAGE>
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. [If Warrants alone - Upon issuance,
each Warrant Certificate shall evidence one or more Warrants.] [If Other
Securities and Warrants - Warrants shall be [initially] issued in connection
with the issuance of the Other Securities [but shall be separately transferable
on and after ______________________________ (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase one Warrant
Security. [If Other Securities and Warrants - Warrant Certificates shall be
initially issued in units with the Other Securities and each Warrant Certificate
included in such a unit shall evidence ____________________ Warrants for each
[__________ principal amount] [__________ shares] of Other Securities included
in such unit.]
SECTION 1.02. Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form substantially in the
form set forth in Exhibit A hereto, shall be dated __________ and may have such
letters, numbers, or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be signed on behalf of the Company by the
Chairman of the Board, the President or a Vice President of the Company and by
the Treasurer or one of the Assistant Treasurers or the Secretary or one of the
Assistant Secretaries of the Company under its corporate seal reproduced
thereon. Such signatures may be manual or facsimile signatures of such
authorized officers 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.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual 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.
In case any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates may be
countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such
-2-
<PAGE>
Warrant Certificate, shall be the proper officers of the Company, although at
the date of the execution of this Agreement any such person was not such
officer.
The term "holder" or "holder of a Warrant Certificate" as used herein shall
mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
[If Other Securities and Warrants are not immediately detachable - or upon the
register of the Other Securities prior to the Detachable Date. Prior to the
Detachable Date, the Company will, or will cause the Registrar of the Other
Securities to, make available at all times to the Warrant Agent such information
as to holders of the Other Securities with Warrants as may be necessary to keep
the Warrant Agent's records up to date].
SECTION 1.03. Issuance of Warrant Certificates. Warrant Certificates
evidencing the right to purchase an aggregate not exceeding __________ Warrant
Securities (except as provided in Sections 2.03(c), 3.02 and 4.01) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter. The Warrant Agent shall,
upon receipt of Warrant Certificates duly executed on behalf of the Company,
countersign Warrant Certificates evidencing Warrants representing the right to
purchase up to __________ Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or in
connection with their transfer, as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price. During the period from __________, through and
including __________, the exercise price of each Warrant will be __________
During the period from __________, through and including __________, the
exercise price of each Warrant will be __________. Such purchase price of
Warrant Securities is referred to in this Agreement as the "Warrant Price". No
adjustment shall be made for any dividends on any Warrant Securities issuable
upon exercise of any Warrant.
SECTION 2.02. Duration of Warrants. Each Warrant may be exercised in whole
at any time, as specified herein, on or after [the date thereof] [__________]
and at or before [__________] P.M., [City] time, on __________ or such later
date as the Company may designate, by notice to the Warrant Agent and the
holders of Warrant Certificates mailed to their addresses as set forth in the
record books of the Warrant Agent (the "Expiration Date"). Each Warrant not
exercised at or before [__________] P.M., [City] time, on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified in
Section 2.02 any whole number of Warrants may be exercised by providing certain
information as set forth on the
-3-
<PAGE>
reverse side of the Warrant Certificate 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 funds] the Warrant Price for each Warrant exercised to the
Warrant Agent at its corporate trust office [or at __________], provided that
such exercise is subject to receipt within five business days of such [payment]
[wire transfer] by the Warrant Agent of the Warrant Certificate with the form of
election to purchase Warrant Securities set forth on the reverse side of the
Warrant Certificate properly completed and duly executed. The date on which
payment in full of the Warrant Price is received by the Warrant Agent shall,
subject to receipt of the Warrant Certificate as aforesaid, be deemed to be the
date on which the Warrant is exercised. The Warrant Agent shall deposit all
funds received by it in payment of the Warrant Price in an account of the
Company maintained with it and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised,
(ii) the instructions of each holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Securities to which
such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iv) such other information as the Company shall
reasonably require.
(c) As soon as practicable after the exercise of any Warrant, the
Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant the Warrant Securities to which such
holder is entitled, in fully registered form, registered in such name or
names as may be directed by such holder. If fewer than all of the Warrants
evidenced by such Warrant Certificate are exercised, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any
transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to
issue or deliver any Warrant Security 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.
(e) Prior to the issuance of any Warrants there shall have been
reserved, and the Company shall at all times keep reserved, out of its
authorized but unissued Warrant Securities, a number of shares sufficient
to provide for the exercise of the Warrant Certificates.
-4-
<PAGE>
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.01. No Rights as Warrant Securityholder Conferred by Warrants or
Warrant Certificates. No Warrant Certificates or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of Warrant
Securities, including, without limitation, the right to receive the payment of
dividends or distributions, if any, on the Warrant Securities or to exercise any
voting rights.
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory to it and
the Company of the ownership of and the loss, theft, destruction or mutilation
of any Warrant Certificate and or indemnity reasonably satisfactory to the
Warrant Agent and the Company and, in the case of mutilation, upon surrender
thereof to the Warrant Agent for cancellation, then, in the absence of notice to
the Company or the Warrant Agent that such Warrant Certificate has been acquired
by a bona fide purchaser, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, in exchange for or
in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants.
Upon the issuance of any new Warrant Certificate 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 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 an additional contractual obligation of the Company, whether or
not the 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. 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 mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the holder of any Warrant
Securities or the holder of any other Warrant Certificate, may, in such holder's
own behalf and for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, such holder's right to exercise the Warrants
evidenced by such holder's Warrant Certificate in the manner provided in such
holder's Warrant Certificate and in this Agreement.
SECTION 3.04. Reclassification, Consolidation, Merger, Sale, Conveyance or
Lease. In case any of the following shall occur while any Warrants are
outstanding: (a) any reclassification or change of the outstanding shares of
Warrant Securities; or (b) any consolidation or merger to which the Company is
party (other than a consolidation or a merger in which the Company is the
continuing
-5-
<PAGE>
corporation and which does not result in any reclassification of, or change in,
the outstanding shares of Warrant Securities issuable upon exercise of the
Warrants); or (c) any sale, conveyance or lease to another corporation of the
property of the Company as an entirety or substantially as an entirety; then the
Company, or such successor or purchasing corporation, as the case may be, shall
make appropriate provision by amendment of this Agreement or otherwise so that
the holders of the Warrants then outstanding shall have the right at any time
thereafter, upon exercise of such Warrants, to purchase the kind and amount of
shares of stock and other securities and property receivable upon such a
reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of shares of Warrant Securities
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
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 Warrants issuable
hereunder which heretofore shall not have been signed by the Company, and may
execute and deliver Warrant Securities in its own name, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such reclassification, change, consolidation,
merger, conveyance, transfer or lease complies with the provisions of this
Section 3.04.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
SECTION 4.01. Exchange and Transfer of Warrant Certificates. [If Other
Securities with Warrants which are immediately detachable - Upon] [If Other
Securities with Warrants which are not immediately detachable - Prior to the
Detachable Date a Warrant Certificate may be exchanged or transferred only
together with the Offered Security to which the Warrant Certificate was
initially attached, and only for the purpose of effecting or in conjunction with
an exchange or transfer of such Offered Security. Prior to any Detachable Date,
each transfer of the Offered Security [on the register of the Other Securities]
shall operate also to transfer the related Warrant Certificates. After the
Detachable Date upon] surrender at the corporate trust office of the Warrant
Agent [or __________], Warrant Certificates evidencing Warrants may be exchanged
for Warrant Certificates in other denominations evidencing such Warrants or the
transfer thereof may be registered in whole or in part; provided that such other
Warrant Certificates evidence the same aggregate number of Warrants as the
Warrant Certificates so surrendered. The Warrant Agent shall keep, at its
corporate trust office [and
-6-
<PAGE>
at ____________________], books in which, subject to such reasonable regulations
as it may prescribe, it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office [or
____________________] for exchange or registration of transfer, properly
endorsed or accompanied by appropriate instruments of registration of transfer
and written instructions for transfer, all in form satisfactory to the Company
and the Warrant Agent. No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant Certificates
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 registration of transfer.
SECTION 4.02. Treatment of Holders of Warrant Certificates. [If Other
Securities and Warrants are not immediately detachable - Prior to the Detachable
Date, the Company, the Warrant Agent and all other persons may treat the owner
of the Offered Security as the owner of the Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Warrants evidenced by such Warrant Certificates, any
notice to the contrary notwithstanding. After the Detachable Date and prior to
due presentment of a Warrant Certificate for registration of transfer, ] [T]he
Company and the Warrant Agent may treat the registered holder of a Warrant
Certificate as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
SECTION 4.03. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exchange, registration of transfer or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in exchange therefor or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
-7-
<PAGE>
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. 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 herein set forth; and
__________ hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Warrant
Certificates and 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
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth 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 from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company
for all services rendered by the Warrant Agent and to reimburse the Warrant
Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred without gross negligence 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 incurred without negligence or bad faith on
the part of the Warrant Agent, arising out of or in connection with its
acting as Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting
solely as agent of the Company and does not assume any obligations or
relationship of agency or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(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 or thing suffered by it in
reliance upon any Warrant Certificate, 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.
-8-
<PAGE>
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, Warrants, with the same rights that it or they would have if it were
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Warrant Securities or other
obligations of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability 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.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read
into this Agreement or the Warrant Certificates against he Warrant Agent.
The Warrant Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in 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 of the Warrant
Certificates authenticated 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 Warrant Certificates. 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 the
Warrant Certificates or in the case of the receipt of any written demand
from a holder of a Warrant Certificate 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 6.02 hereof, to make any demand
upon the Company.
SECTION 5.03. Resignation and Appointment of Successor. (a) The Company
agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
-9-
<PAGE>
(b) The Warrant Agent may at any time resign as agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such
removal and the intended date when it shall become effective. Such
resignation or removal shall take effect upon the appointment by the
Company, as hereinafter provided, of a successor Warrant Agent (which shall
be a bank or trust company authorized under the laws of the jurisdiction of
its organization to exercise corporate trust powers) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the
Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the 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 commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other
applicable Federal or State bankruptcy, insolvency or similar law or shall
consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Warrant Agent or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, or a decree or order
for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law, or a
decree or order by a court having jurisdiction in the premises shall have
been entered for the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or similar official) of the Warrant Agent
or of its property or affairs, or any public officer shall take charge or
control of the Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation, winding up 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 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
-10-
<PAGE>
Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant
Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder 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 the assets and business of the Warrant Agent, provided
that it shall be qualified as aforesaid, shall be the successor Warrant
Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as the Company and
the Warrant Agent may deem necessary or desirable; provided that such action
shall not affect adversely the interests of the holders of the Warrant
Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 6.03. Addresses. Any communication from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
____________________, Attention: __________ and any communication from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to United HealthCare Corporation, 300 Opus Center, 9900 Bren Road East,
Minnetonka, Minnesota 55343, Attention: Secretary (or such other address as
shall be specified in writing by the Warrant Agent or by the Company).
SECTION 6.04. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of [___________].
SECTION 6.05. Delivery of Prospectus. The Company shall furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus.
-11-
<PAGE>
The Warrant Agent shall not, by reason of any such delivery, assume any
responsibility for the accuracy or adequacy of such Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities act filings under United States Federal and State
laws (including without limitation a registration statement in respect of the
Warrants and Warrant Securities under the Securities Act of 1933), which may be
or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.07. Persons Having Rights Under Warrant Agreement. Nothing in
this Agreement shall give to any person other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Agreement.
SECTION 6.08. 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.
SECTION 6.09. Counterparts. This Agreement may be executed in any number of
counterparts, each of which as so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
-12-
<PAGE>
****
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
UNITED HEALTHCARE CORPORATION
By
--------------------------------
Its
-----------------------------
Attest:
- ----------------------
----------------------------------
Warrant Agent
By
--------------------------------
Its
-----------------------------
Attest:
- ----------------------
-13-
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[If Warrants are attached to Other Prior to__________ this Warrant Certificate
Securities and are not immediately cannot be transferred or exchanged unless
detachable. attached to a [Title of Other Securities].]
[Form of Legend if Warrants are Prior to__________, Warrants evidenced by
not immediately exercisable. this Warrant Certificate cannot be
exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [__________] P.M., [CITY] TIME, ON __________, _____
UNITED HEALTHCARE CORPORATION
Warrants to Purchase
Warrant Certificate Representing
[Title of Warrant Securities]
No. __________ __________ Warrants
This certifies that __________ or registered assigns is the registered
owner of the above indicated number of Warrants, each Warrant entitling such
owner [if Warrants are attached to Other Securities and are not immediately
detachable - , subject to the registered owner qualifying as a "Holder" of this
Warrant Certificate, as hereinafter defined) to purchase, at any time [after
[__________] P.M., [City] time, on __________ and] on or before [__________]
P.M., [City] time, on __________, __________ shares of [Title of Warrant
Securities] (the "Warrant Securities"), of United HealthCare Corporation (the
"Company") on the following basis: during the period from __________, through
and including __________, the exercise price of each Warrant will be __________;
during the period from __________, through and including __________, the
exercise price of each warrant will be __________ (the "Warrant Price"). No
adjustment shall be made for any dividends on any Warrant Securities issuable
upon exercise of any Warrant. The Holder may
A-1
<PAGE>
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 funds, the Warrant Price for each Warrant 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 (the
"Warrant Agent"), [or____________________], 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 [if Warrants are attached to
Other Securities and are not immediately detachable - prior to __________,
__________ (the "Detachable Date"), the registered owner of the Company's [title
of Other Securities] to which this Warrant Certificate was 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 pursuant to Section 4.01 of the Warrant
Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form. Upon any exercise
of fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the Holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of __________, __________ (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 the
Holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at _____________].
[if Warrants are attached to Other Securities and are not immediately
detachable - Prior to the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Other Securities] (the
"Other 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. Additionally, on or prior to the Detachable
Date, each transfer of such Other Security or the register of the Other
Securities shall operate also to transfer this Warrant Certificate. After such
date, transfer of this] [if Warrants are attached to Other Securities and are
not immediately detachable - Transfer of this] Warrant Certificate may be
registered when this Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent [or ____________________] by the registered owner of
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.
[If Other Securities with Warrants which are not immediately detachable -
Except as provided in the immediately preceding paragraph, after] [if Other
Securities with Warrants which are
A-2
<PAGE>
immediately detachable or Warrant alone - 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 ____________________] for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the Holder hereof to any of the
rights of a holder of the Warrant Securities, including, without limitation, the
right to receive payments of dividends or distributions, if any, on the Warrant
Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed in
its name and on its behalf by the facsimile signatures of its duly authorized
officers.
Dated:______________
UNITED HEALTHCARE CORPORATION
By
---------------------------
Its
------------------------
Attest:
- ----------------------
Countersigned:
- ----------------------
As Warrant Agent
By
--------------------
Authorized Signature
A-3
<PAGE>
[Reverse of Warrant Certificate]
(Instructions for Exercise of Warrant)
To exercise the Warrants evidenced hereby, the Holder must pay [in United
States dollars] [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
funds], the Warrant Price in full for Warrants exercised, to [Warrant Agent]
[address of Warrant Agent], Attn: ____________________, which payment must
specify the name of the Holder and the number of Warrants exercised by such
Holder. In addition, the Holder must complete the information required below and
present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth
below. This Warrant Certificate, completed and duly executed, must be received
by the Warrant Agent within five business days of the payment.
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise __________ Warrants,
evidenced by this Warrant Certificate, to purchase __________ shares of the
[Title of Warrant Securities] (the "Warrant Securities") of United HealthCare
Corporation and represents that he has tendered payment for such Warrant
Securities [in Dollars] [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 funds] to the order of United HealthCare Corporation, c/o [insert name
and address of Warrant Agent], in the amount of __________ in accordance with
the terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form 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
-------------------------------
(Please Print)
Address
- --------------------------------
(Insert Social Security or Other
Identifying Number of Holder)
A-4
<PAGE>
Signature Guaranteed
-------------------------------------------
Signature
[For registered Warrants -- Signature must
conform in all respects to name of holder
as specified on the face of this 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)
This Warrant may be exercised at the following addresses:
By hand at
By mail at
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificates evidencing unexercised Warrants - complete as
appropriate.]
A-5
<PAGE>
EXHIBIT 4.26
- --------------------------------------------------------------------------------
UNITED HEALTHCARE CORPORATION
AND
________________, AS WARRANT AGENT
DEBT SECURITIES
WARRANT AGREEMENT
DATED AS OF _______________
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I. ISSUANCE, EXECUTION AND AUTHENTICATION OF
WARRANT CERTIFICATES
SECTION 1.02. Form of Warrant Certificates................................2
SECTION 1.03. Execution and Authentication of Warrant Certificates........2
SECTION 1.04. Temporary Warrant Certificates..............................3
SECTION 1.05. Payment of Taxes............................................3
SECTION 1.06. Definition of Holder........................................3
ARTICLE II. WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price...............................................4
SECTION 2.02. Duration of Warrants........................................4
SECTION 2.03. Exercise of Warrants........................................4
ARTICLE III. [REGISTRATION;] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
SECTION 3.01. [Registration;] Exchange and Transfer of
Warrant Certificates........................................5
SECTION 3.02. Mutilated, Destroyed, Lost or Stolen Warrant Certificates...6
SECTION 3.03. Persons Deemed Owners.......................................7
SECTION 3.04. Cancellation of Warrant Certificates........................7
ARTICLE IV. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OR
WARRANT CERTIFICATES
SECTION 4.01. No Rights as Holders of Warrant Debt Securities Conferred
by Warrants or Warrant Certificates..................7
SECTION 4.02. Holder of Warrant Certificate May Enforce Rights............7
ARTICLE V. CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent...............................................8
SECTION 5.02. Conditions of Warrant Agent's Obligations...................8
SECTION 5.03. Resignation, Removal and Appointment of Successors.........10
ARTICLE VI. MISCELLANEOUS
SECTION 6.01. Rights and Duties of Successor Corporation.................11
SECTION 6.02. Amendment..................................................11
SECTION 6.03. Notices and Demands to the Corporation and Warrant Agent...11
SECTION 6.04. Addresses..................................................12
SECTION 6.05. Governing Law..............................................12
SECTION 6.06. Delivery of Prospectus.....................................12
- i -
<PAGE>
SECTION 6.07. Obtaining of Governmental Approvals........................12
SECTION 6.08. Persons Having Rights Under Warrant Agreement..............12
SECTION 6.09. Headings...................................................12
SECTION 6.10. Counterparts...............................................12
SECTION 6.11. Inspection of Agreement....................................12
- ii -
<PAGE>
UNITED HEALTHCARE CORPORATION
FORM OF DEBT SECURITIES WARRANT AGREEMENT
DEBT SECURITIES WARRANT AGREEMENT, dated as of __________ between
United HealthCare Corporation, a corporation duly organized and existing under
the laws of the State of Delaware (the "Company") and __________, a
[corporation] [national banking association] organized and existing under the
laws of __________, as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture dated as of
[__________ (the "Senior Indenture"), with __________, as trustee (such trustee,
and any successors to such trustee, herein called the "Senior Trustee"),
providing for the issuance from time to time of its unsecured and unsubordinated
debt securities, to be issued in one or more series as provided in the Senior
Indenture (the "Debt Securities");] [__________ (the "Subordinated Indenture"),
with __________, as trustee (such trustee, and any successors to such trustee,
herein called the "Subordinated Trustee"), providing for the issuance from time
to time of its subordinated debt securities, to be issued in one or more series
as provided in the Subordinated Indenture (the "Debt Securities");]
WHEREAS, the Company proposes to sell [If Other Debt Securities and
Warrants --title of Debt Securities being offered (the "Other Debt Securities")
with] warrant certificates (such warrant certificates and other warrant
certificates issued pursuant to this Agreement herein called the "Warrant
Certificates") evidencing one or more warrants (the "Warrants" or, individually,
a "Warrant" representing the right to purchase [title of Debt Securities
purchasable through exercise of Warrants] (the "Warrant Debt Securities"); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Agreement wishes to set forth, among other things, the form and provisions
of the Warrant Certificates and the terms and conditions on which they may be
issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
<PAGE>
ARTICLE I.
ISSUANCE, EXECUTION AND AUTHENTICATION OF
WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrant Certificates. [If Warrants
alone--Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Other Debt Securities and Warrants--Warrant Certificates shall be
[initially] issued in units with the Other Debt Securities and shall [not] be
separately transferable [before __________ (the "Detachable Date"). The Warrant
Certificate or Certificates included in each such unit shall evidence an
aggregate of __________ Warrants for each $__________ principal amount of Other
Debt Securities included in such unit.] Each Warrant evidenced thereby shall
represent the right, subject to the provisions contained herein and therein, to
purchase Warrant Debt Securities in the aggregate principal amount of
$__________.
SECTION 1.02. Form of Warrant Certificates. The Warrant Certificates
(including the Form(s) of Exercise [and Assignment] to be set forth on the
reverse thereof) shall be in substantially the from set forth in Exhibit A
hereto, shall be printed, lithographed or engraved on steel engraved borders (or
in any other manner determined by the officers executing such Warrant
Certificates, as evidenced by their execution of such Warrant Certificates) 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 any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any securities exchange on which the Warrant Certificates may be listed or as
may, consistently herewith, be determined by the officers executing such Warrant
Certificates, as evidenced by their execution of the Warrant Certificates.
SECTION 1.03. Execution and Authentication of Warrant Certificates. The
Warrant Certificates shall be executed on behalf of the Company by its Chairman
of the Board, it 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 Warrant Certificates
may be manual or facsimile.
Warrant Certificates evidencing the right to purchase an aggregate
principal amount not exceeding $__________ of Warrant Debt Securities (except as
provided in Section 1.04, 2.03(c), 3.01 and 3.02) may be executed by the Company
and delivered to the Warrant Agent upon the execution of this Warrant Agreement
or from time to time thereafter. The Warrant Agent shall, upon receipt of
Warrant Certificates duly executed on behalf of the Company, authenticate
Warrant Certificates evidencing Warrants representing the right to purchase up
to $__________ aggregate principal amount of Warrant Debt Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall authenticate a Warrant Certificate only if the Warrant Certificate
is issued in exchange or substitution for one or more previously authenticated
Warrant Certificates [If registered Warrants--or in connection with their
transfer], as hereinafter provided.
<PAGE>
Each Warrant Certificate shall be dated the date of its authentication
by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidence
thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates 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 Warrant
Certificates or did not hold such offices at the date of such Warrant
Certificates.
SECTION 1.04. 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 authenticate and deliver, temporary
Warrant Certificates which 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 officers
executing such Warrant Certificates may determine, as evidenced by their
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__________], without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Warrant Certificates, the Company
shall execute and the Warrant Agent shall authenticate 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.
SECTION 1.05. Payment of Taxes. The Company will pay all stamp taxes
and other duties, if any, to which, under the laws of the United States of
America or any State or political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
SECTION 1.06. Definition of Holder. The term "Holder" as used herein
shall mean [If Other Debt Securities and Warrants which are not immediately
detachable--, prior to the Detachable Date, the [bearer] [registered owner] of
the Other Debt Securities to which such Warrant Certificates was initially
attached, and, after such Detachable Date,] [the bearer of such Warrant
Certificate] [the person in whose name at the time such Warrant Certificate
shall be
<PAGE>
registered upon the books to be maintained by the Warrant Agent for that purpose
pursuant to Section 3.01.]. [If Other Debt Securities and Warrants which are not
immediately detachable-Prior to the Detachable Date, the Company will, or will
cause the registrar of the Other Debt Securities to make available to the
Warrant Agent current information as to Holders of the Other Debt Securities.]
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.01. Warrant Price.1/ During the period from __________, ____
through and including __________, ____, each Warrant shall entitle the Holder
thereof, subject to the provisions of this Agreement, to purchase from the
Company the principal amount of Warrant Debt Securities stated in the Warrant
Certificate at the Warrant Price of ____% of the principal amount thereof [plus
accrued amortization, if any, of the original issue discount of the Warrant Debt
Securities] [plus accrued interest, if any, from the most recent date from which
interest shall have been paid on the Warrant Debt Securities or, if no interest
shall have been paid on the Warrant Debt Securities, from __________, ____].
During the period from __________, ____ through and including __________, ____,
each Warrant shall entitled the Holder thereof, subject to the provisions of
this Agreement, to purchase from the Company the principal amount of Warrant
Debt Securities stated in the Warrant Certificate at the Warrant Price of
__________% of the principal amount thereof [plus accrued amortization, if any,
of the original issue discount of the Warrant] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Debt Securities or, if no interest shall have been paid on the Warrant
Debt Securities, from __________, ____]. [In each case, the original issue
discount ($__________ for each $1,000 principal amount of Warrant Debt
Securities) will be amortized at a __________% annual rate, computed on a[n]
[semi-] annual basis [using a 360-day year consisting of twelve 30-day months].]
Such Warrant Price of each Warrant is referred to in this Agreement as the
"Warrant Price."
SECTION 2.02. Duration of Warrants. Any Warrant evidence by a Warrant
Certificate may be exercised at any time, as specified herein, on or after [the
date thereof] [__________, ____] and at or before [____] p.m., [City] time, on
__________, ____, (the "Expiration Date"). Each Warrant not exercised at or
before such time on the Expiration Date shall become void, and all rights of the
Holder of the Warrant Certificate evidencing such Warrant under this Agreement
or otherwise shall cease.
SECTION 2.03. Exercise of Warrants. (a) During the period specified in
Section 2.02, any whole number of Warrants may be exercised by surrendering the
Warrant Certificate evidencing such Warrants at the place or at the places set
forth in the Warrant Certificate, with the purchase form set forth in the
Warrant Certificate duly executed, accompanied by payment in
- --------
1/Complete and modify the provision of this Section as appropriate to reflect
the exact terms of the Warrants and the Warrant Debt Securities.
<PAGE>
full, in lawful money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds] [by wire transfer
in immediately available funds], of the Warrant Price for each Warrant
exercised. The date on which payment in full of the Warrant Price for a Warrant
and the duly executed and completed Warrant Certificate are received by the
Warrant Agent shall be deemed to be the date on which such Warrant is exercised.
The Warrant Agent shall deposit all funds received by it as payment for the
exercise of Warrants to the account of the Company maintained with it for such
purpose and shall advise the Company by telephone at the end of each day on
which such a payment is received of the amount so deposited to its account. The
Warrant Agent shall promptly confirm such telephonic advice to the Company in
writing.
(b) The Warrant Agent shall from time to time, as promptly as
practicable after the exercise of any Warrants in accordance with the
terms and conditions of this Agreement and the Warrant Certificates,
advise the Company and the Trustee of (i) the number of Warrants so
exercised, (ii) the instructions of each Holder of the Warrant
Certificates evidencing such Warrants with respect to delivery of the
Warrant Debt Securities to which such Holder is entitled upon such
exercise, and instructions of such Holder as to delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iii) such other information as the Company or
the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Warrants,
the Company shall issue, pursuant to the Indenture, in authorized
denominations, to or upon the order of the Holder of the Warrant
Certificate evidencing such Warrants, the Warrant Debt Securities to
which such Holder is entitled in fully registered form, registered in
such name or names as may be directed by such Holder; and, if fewer
than all of the Warrants evidenced by such Warrant Certificate were
exercised, the Company shall execute and an authorized officer of the
Warrant Agent shall manually authenticate and deliver a new Warrant
certificate evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in
connection with any transfer involved in the issue of the Warrant Debt
Securities; and in the event that any such transfer is involved, the
Company shall not be required to issue or delivery any Warrant Debt
Securities 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.
ARTICLE III.
[REGISTRATION;] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
SECTION 3.01. [Registration;] Exchange and Transfer of Warrant
Certificates. [If registered Warrants--The Warrant Agent shall keep, at its
corporate trust office [and at __________], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and transfer of outstanding Warrant Certificates.]
<PAGE>
[If Other Debt Securities and Warrants which are not immediately
detachable--Prior to the Detachable Date, a Warrant Certificate may be exchanged
or transferred only together with the Other Debt Security to which such Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Other Debt Securities.
Additionally, on or prior to the Detachable Date, each transfer of an Other Debt
Security [on the register of the Other Debt Securities] shall operate also to
transfer the Warrant Certificate or Certificates to which such Other Debt
Security was initially attached. After the Detachable Date, upon] [If Other Debt
Securities and Warrants which are immediately detachable or if Warrants
alone--Upon] current at the corporate trust office of the Warrant Agent [or
__________] of Warrant Certificates properly endorsed [or accompanied by
appropriate instruments of transfer] and accompanied by written instructions for
[transfer or] exchange, all in form satisfactory to the Company and the Warrant
Agent, such Warrant Certificates may be exchanged for other Warrant Certificates
[If registered Warrants--or may be transferred in whole or in part]; provided
that Warrant Certificates issued in exchange for [or upon transfer of]
surrendered Warrant Certificates shall evidence the same aggregate number of
Warrants and the Warrant Certificates so surrendered. No service charge shall be
made for any exchange [or transfer] of Warrant Certificates, but the Company may
require payment of a sum sufficient to cover any stamp or other tax or
governmental charge that may be imposed in connection with any such exchange [or
transfer]. Whenever any Warrant certificates are so surrendered for exchange [or
transfer], the Company shall execute and an authorized officer of the Warrant
Agent shall manually authenticate and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates as so requested. The
Warrant Agent shall not be required to effect any exchange [or transfer] which
would result in the issuance of a Warrant Certificate evidencing a fraction of a
Warrant or a number of full Warrants and a fraction of Warrant. All Warrant
Certificates issued upon any exchange [or transfer] of Warrant Certificates
shall evidence the same obligations, and be entitled to the same benefits under
this Agreement, as the Warrant Certificates surrendered for such exchange [or
transfer].
SECTION 3.02. Mutilated, Destroyed, Lost or Stolen Warrant
Certificates. If any mutilated Warrant Certificate is surrendered to the Warrant
Agent, the Company shall execute and an officer of the Warrant Agent shall
manually authenticate and deliver in exchange therefor a new Warrant Certificate
of like tenor and principal amount and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Warrant Agent
(i) evidence to their satisfaction of the destruction, loss or theft of any
Warrant Certificate and of the ownership thereof 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
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually authenticate and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like
tenor and principal amount and bearing a number not contemporaneously
outstanding, upon the issuance of any new Warrant Certificate 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 Warrant Agent) connected
therewith. Every new Warrant Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Warrant Certificate shall
<PAGE>
evidence an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates 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
Warrant Certificates.
SECTION 3.03. Persons Deemed Owners. [If Other Debt Securities and
Warrants which are not immediately detachable--Prior to the Detachable Date, the
Company, the Warrant Agent and all other persons may treat the owner of any
Other Debt Security as the owner of the Warrant Certificates initially attached
thereto for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidence by such Warrant Certificates, any notice to
the contrary notwithstanding. After the Detachable Date,] [If registered
Warrants--and prior to due presentment of a Warrant Certificate for registration
or transfer,] the Company, the Warrant Agent and all other person may treat the
Holder as the owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
SECTION 3.04. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange [, transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Corporation, be delivered to the
Warrant Agent, and [If Warrant Certificates are issued in bearer form--, except
as provided bellow,] all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by it and shall not be reissued and,
except as expressly permitted by this Agreement, no Warrant Certificate shall be
issued hereunder in lieu or in exchange thereof. [If Warrant Certificates are
issued in bearer form-Warrant Certificates delivered to the Warrant Agent in
exchange for Warrant Certificates of other denominations may be retained by the
Warrant Agent for reissue as authorized hereunder.] The Company may at any time
deliver to the Warrant Agent for cancellation any Warrant Certificates
previously issued hereunder which the Company may have acquired in any manner
whatsoever, and all Warrant Certificates so delivered shall be promptly canceled
by the Warrant Agent. All canceled Warrant certificates held by the Warrant
Agent shall be destroyed by it unless by written order the Company requests
their return to it.
ARTICLE IV.
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OR WARRANT CERTIFICATES
SECTION 4.01. No Rights as Holders of Warrant Debt Securities Conferred
by Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder thereof to any of the rights of a Holder of the
Warrant Debt Securities, including, without limitation, the right to receive the
payment of principal of (or premium, if any) or interest, if any, on the Warrant
Debt Securities or to enforce any of the covenants in the Indenture.
SECTION 4.02. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the
<PAGE>
consent of the Warrant Agent, the Trustee, the holder of any Warrant Debt
Securities or the Holder of any other Warrant Certificate, may, on his own
behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce or otherwise
in respect of, his right to exercise the Warrant or Warrants evidenced by this
Warrant Certificate in the manner provided in the Warrant Certificates and in
this Agreement.
ARTICLE V.
CONCERNING THE WARRANT AGENT
SECTION 5.01. 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 herein set forth, and
__________ hereby accepts such appointment. The Warrant Agent shall have the
power and authority granted to and conferred upon it in the Warrant Certificates
and hereby and such further power 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 power and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth, 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 from time to time of the Warrant
Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon
with the Company for all services rendered by the Warrant Agent and to
reimburse the Warrant Agent for reasonable out-of-pocket expenses
(including 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 incurred without negligence or
bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as such Warrant Agent hereunder, including
the costs land expenses of defending itself against any claim or
liability in connection with the exercise or performance at any time of
its powers or duties hereunder. The obligations of the Company under
this subsection (a) shall survive the exercise of the Warrant
Certificates and the resignation or removal of the Warrant Agent.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, 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 of the
owners or Holders of the Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel, which
may include counsel for the Company, 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 reliance thereon.
<PAGE>
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or omitted by
it in reliance upon any Warrant Certificates, 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) Certain Transactions. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company,
in its individual or any other capacity, may become the owner of, or
acquire any interest in, any Warrant Certificates, with the same rights
that it would have if it were not such Warrant Agent, officer,
director, employee or other agent, and, to the extent permitted by
applicable law, it may engage or be interested in any financial or
other transaction with the Company and may act on, or as depositary,
trustee or agent for, any committee or body of holders of Warrant Debt
Securities or other obligations of the Company as freely as if it were
not such Warrant Agent, officer, director, employee or other agent.
Nothing in this Warrant Agreement shall be deemed to prevent the
Warrant Agent from acting as Trustee under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall not be
under any liability 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.
(g) No Liability for Invalidity. The Warrant Agent shall not
incur any liability with respect to the validity of this Agreement or
any of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant Agent
shall not be responsible for any of the recitals or representations
contained herein or in the Warrant Certificates (except as to the
Warrant Agent's Certificate of Authentication thereon), all of which
are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant
Certificates specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Warrant
Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to
involve it in 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 of the Warrant
Certificates authenticated 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 Warrant Certificates or any exercise of
the Warrants evidenced thereby. 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 the Warrant
Certificates or in the Warrant Debt Securities or in the case of the
receipt of any written demand from a Holder of a Warrant certificate
with respect to such default, including, without limiting the
generality of the foregoing, any duty or
<PAGE>
responsibility to initiate or attempt to initiate any proceedings at
law or otherwise or, except as provided in Section 6.03 hereof, to make
any demand upon the Company.
SECTION 5.03. Resignation, Removal and Appointment of Successors.
(a) The Company agrees, for the benefit of the Holders from
time to time of the Warrant Certificates, that there shall at all times
be a Warrant Agent hereunder until all of the Warrant Certificates are
no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become
effective; provided that, without the consent of the Company, such date
shall not be less than [three months] after the date on which such
notice is given. The Warrant Agent hereunder may be removed at any time
by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date on which
the Company expects such removal to become effective. Such resignation
or removal shall take effect upon the appointment by the Company 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, any State thereof or the District of Columbia and authorized
under such laws to exercise corporate trust powers) by an instrument in
writing filed with such successor Warrant Agent and the acceptance of
such appointment by such successor Warrant Agent pursuant to Section
5.03(d).
(c) In case at any time the Warrant Agent shall resign, or be
removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy
or make an assignment for the benefit of its creditors or consent to
the appointment of a receiver or custodian of 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 or custodian of it or
of all or any substantial part of its property shall be appointed, or
if an order of any court shall be entered approving any petition filed
by or against it under the provisions of any applicable 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, 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 latter 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
<PAGE>
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, all monies, securities and other
property on deposit with or held by such predecessor, as Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder 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 succeeding to all or substantially all the
corporate trust business of the Warrant Agent, provided that it shall
be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.01. Rights and Duties of Successor Corporation. In case of
any consolidation, merger or sale, lease or conveyance of all or substantially
all of the assets of the Company and upon any assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein, and the
predecessor corporation, except in the event of a lease, shall be relieved of
any further obligation under this Agreement and the Warrants. Such successor
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 Warrant Debt Securities
issuable pursuant to the terms hereof. All the Warrant Debt Securities so issued
shall in all respects have the same legal rank and benefit under the Indenture
as the Warrant Debt Securities theretofore or thereafter issued in accordance
with the terms of this Agreement and the Indenture.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Warrant Debt Securities thereafter to be issued as may be appropriate.
SECTION 6.02. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the Holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or making such provisions in regard to
matters or questions arising under this Agreement as the Company may deem
necessary or desirable; provided that such action shall not adversely affect the
interests of the Holders of the Warrant Certificates in any material respect.
The Warrant Agent may, but shall not be obligated to, enter into any amendment
to this agreement which affects the Warrant Agent's own rights, duties or
immunities under this Agreement or otherwise.
SECTION 6.03. Notices and Demands to the Corporation and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the Holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
<PAGE>
SECTION 6.04. Addresses. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to __________,
Attention: Secretary, and any communications from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to United HealthCare
Corporation, United HealthCare Plaza, 60 South Sixth Street, Minneapolis,
Minnesota 55402-4422, Attention: Secretary, (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
SECTION 6.05. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of [___________].
SECTION 6.06. Delivery of Prospectus. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus, appropriately supplemented,
relating to the Warrant Debt Securities (the "Prospectus"), and the Warrant
Agent agrees that, upon the exercise of any Warrant Certificate, the Warrant
Agent will deliver to the person designated to receive Warrant Debt Securities
prior to or concurrently with the delivery of such Securities, a Prospectus.
SECTION 6.07. Obtaining of Governmental Approvals. The Company will
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including, without limitation, the maintenance of the effectiveness
of a registration statement in respect of the Warrant Debt Securities under the
Securities Act of 1933), which may be or become required in connection with
exercise of the Warrant Certificates and the original issuance and delivery of
the Warrant Debt Securities.
SECTION 6.08. 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 of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof; and all covenants, conditions, stipulations, promises and
agreements in this Agreement contained shall be for the sole and exclusive
benefit of the Company and the Warrant Agent and their successors and of the
Holders of the Warrant Certificates.
SECTION 6.09. Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
SECTION 6.10. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.11. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent [and at
<PAGE>
__________ for inspection by the Holder of any Warrant Certificate. The Warrant
Agent may require such Holder to submit his Warrant Certificate for inspection
by it.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
UNITED HEALTHCARE CORPORATION
By
-------------------------------
Its
------------------------------
Attest:
- ------------------
__________________________, as
Warrant Agent
By
-------------------------------
Its
----------------------------
Attest:
- ------------------
<PAGE>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form if Warrants are attached Prior to __________, this Warrant
to Other Securities and Certificate cannot be transferred or
are not immediately exchanged unless attached to a [Title
detachable of Other Debt Security]
[Form of Legend if Warrants Prior to __________, Warrants
are not immediately Certificate cannot be exercised.]
evidenced by this Warrant
exercisable
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
VOID AFTER [_____] P.M., [CITY] TIME, ON ________________
UNITED HEALTHCARE CORPORATION
WARRANT CERTIFICATE REPRESENTING
WARRANTS TO PURCHASE
[TITLE OF WARRANT DEBT SECURITIES]
---------------------
No. ____________ _________ Warrants
This certifies that [the bearer is the] [__________ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such [bearer [If Warrants are attached to Other Securities and
are not immediately detachable --, subject to the bearer qualifying as a
"Holder" of this Warrant Certificate, as hereinafter defined]] [registered
owner] to purchase, at any time [after [________] p.m., [City] time, on ________
and] on or before [_____] p.m., [City] time, on ________ $_____ principal amount
of [Title of Warrant Debt Securities] (the "Warrant Debt Securities") of United
HealthCare Corporation (the "Company"), issued or to be issued under the
Indenture (as hereinafter defined), on the following basis:*/ [During the period
from _________,____ through and including ____________,____, each Warrant shall
entitle the Holder thereof, subject to the provisions of this Agreement, to
purchase from the
- --------
*/Complete and modify the following provisions as appropriate to reflect the
terms of the Warrants and the Warrant Debt Securities.
A-1
<PAGE>
Company the principal amount of Warrant Debt Securities stated in the Warrant
Certificate at the Warrant Price of _____% of the principal amount thereof [plus
accrued amortization, if any, of the original issue discount of the Warrant Debt
Securities] [plus accrued interest, if any, from the most recent date from which
interest shall have been paid on the Warrant Debt Securities or, if no interest
shall have been paid on the Warrant Debt Securities, from ________,____]; during
the period from ________,____ through and including ________,____, each Warrant
shall entitle the Holder thereof, subject to the provisions of this Agreement,
to purchase from the Company the principal amount of Warrant Debt Securities
stated in the Warrant Certificate at the Warrant Price of ____% of the principal
amount thereof [plus accrued amortization, if any, of the original issue
discount of the Warrant Debt Securities] [plus accrued interest, if any, from
the most recent date from which interest shall have been paid on the Warrant
Debt Securities or, if no interest shall have been paid on the Warrant Debt
Securities, from _________,____] [in each case, the original issue discount
($____ for each $1,000 principal amount of Warrant Debt Securities) will be
amortized at ____% annual rate, computed on a[n] [semi-]annual basis [, using a
360 day year consisting of twelve 30 day months] (the "Warrant Price"). The
Holder of this Warrant Certificate may exercise the Warrants evidenced hereby,
in whole or in part, by surrendering this Warrant Certificate, with the purchase
form set forth hereon duly completed, accompanied by payment in full, in lawful
money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds], the Warrant Price for each Warrant exercised, to
the Warrant Agent (as hereinafter defined), at the corporate trust office of
[name of Warrant Agent], or its successor as warrant agent (the "Warrant Agent")
[or at _________,], at the addresses 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). This Warrant Certificate may be
exercised only for the purchase of Warrant Debt Securities in the principal
amount of [$1,000] or any integral multiple thereof.
The term "Holder" as used herein shall mean [If Warrants are attached
to Other Securities and are not immediately detachable--, prior to
_____________,____ (the "Detachable Date"), the [bearer] [registered owner] of
the Company's [title of Other Debt Securities] to which this Warrant Certificate
was initially attached, and after such Detachable Date,] [the bearer of such
Warrant Certificate] [the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent Or that purpose pursuant to Section 3.01].
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Debt Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the [bearer] [registered owner] hereof a
new Warrant Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of _________,____ (the "Warrant Agreement"), between
the Company and the Warrant
A-2
<PAGE>
Agent and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the holder of this Warrant
Certificate consents by acceptance hereof. Copies of the Warrant Agreement are
on file at the above-mentioned office of the Warrant Agent [and at _________].
The Warrant Debt Securities to be issued and delivered upon the
exercise of Warrants evidenced by this Warrant Certificate may be issued under
and in accordance with an Indenture, [dated as of _________,____ (the "Senior
Indenture"), between the Company and _______, as trustee (such trustee, and any
successors to such trustee, the "Senior Trustee")] [dated as of ________,____
(the "Subordinated Indenture"), between the Company and ________, as trustee
(such trustee, and any successors to such trustee, the "Subordinated Trustee")]
and will be subject to the terms and provisions contained in the Warrant Debt
Securities and in the Indenture. Copies of the [Senior][Subordinated] Indenture,
including the form of the Warrant Debt Securities, are on file at the corporate
trust office of the Trustee [and at _________].
[If Warrants are attached to Other Securities and are not immediately
detachable--Prior to _________,____ (the "Detachable Date"), this Warrant
Certificate may be exchanged or transferred only together with the [title of
Other Debt Security] (the "Other Debt Security") 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 Other Debt Security.
Additionally, on or prior to the Detachable Date, each transfer of such Other
Debt Security on the register of the Other Debt Securities shall operate also to
transfer this Warrant Certificate. After the Detachable Date, this] [If Warrants
are attached to Other Securities and are immediately detachable or Warrants
alone--This] Warrant Certificate, and all rights hereunder, may be transferred
[If bearer Warrants-by delivery and the Company and the Warrant Agent may treat
the bearer hereof as the owner for all purposes] [If registered Warrants--when
surrendered at the corporate trust office of the Warrant Agent [or _______] by
the registered owner or his assigns, in person or by an attorney duly authorized
in writing in the manner and subject to the limitations provided in the Warrant
Agreement.]
[If Warrants are attached to Other Securities and are not immediately
detachable-Except as provided in the immediately preceding paragraph, after] [If
Warrants are attached to Other Securities and are immediately detachable or
Warrants alone--After] authentication 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.
This Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Debt Securities, including, without
limitation, the right to receive payments of principal of (and premium, if any)
or interest, if any, on the Warrant Debt Securities or to enforce any of the
covenants of the Indenture.
A-3
<PAGE>
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any
purpose until authenticated by the Warrant Agent.
A-4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
UNITED HEALTHCARE
CORPORATION
By
---------------------------
Its
--------------------------
Attest:
- ------------------
-------------------------, as
Warrant Agent
By
---------------------------
Its
-------------------------
Attest:
- ------------------
A-5
<PAGE>
[Reverse of Warrant Certificate]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds] [by bank wire transfer in immediately available
funds], the Warrant Price in full for each of the Warrants exercised, to
[Warrant Agent] [address of Warrant Agent], Corporate Trust Department, , Attn:
, which payment should specify the name of the Holder of this Warrant
Certificate and the number of Warrants exercised by such Holder. In addition,
the Holder of this Warrant Certificate should complete the information required
below and present in person or mail by registered mail this Warrant Certificate
to the Warrant Agent at the addresses set forth below.
FORM OF EXERCISE
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise _______ Warrants,
represented by this Warrant Certificate, to purchase $________ principal amount
of the [Title of Warrant Debt Securities] (the 'Warrant Debt Securities") of
United HealthCare Corporation and represents that he has tendered payment for
such Warrant Debt Securities [in cash or by certified check or official bank
check in New York Clearing House funds] [by bank wire transfer in immediately
available funds] to the order of United HealthCare Corporation, c/o [name and
address of Warrant Agent], in the amount of $_______ in accordance with the
terms hereof. The undersigned requests that said principal amount of Warrant
Debt Securities be in fully registered form, in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
If said principal amount of Warrant Debt Securities is less than all of
the Warrant Debt Securities purchasable hereunder, the undersigned requests that
a new Warrant Certificate representing the remaining balance of the Warrants
evidenced hereby be issued and delivered to the undersigned unless otherwise
specified in the instructions below.
A-6
<PAGE>
Dated:
Name
----------------------------------------------------------------------------
(Please Print)
- -------------------------------- Address
(Insert Social Security or Other ----------------------------
Identifying Number of Holder) Signature
--------------------------
[If registered Warrant--(Signature must
conform in all respects to name of holder
as specified on the face of this 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.)]
This Warrant may be exercised at the following addresses:
By hand at
------------------------------------------
------------------------------------------
------------------------------------------
By mail at
------------------------------------------
------------------------------------------
------------------------------------------
[Instructions as to form and delivery of Warrant Debt Securities and/or Warrant
Certificates -- complete as appropriate.]
A-7
<PAGE>
[If Registered Warrant-
FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER)
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED ______________ hereby sells, assigns and transfers
unto
_____________________ Please insert social security or
_____________________ other identifying number
_____________________ __________________________________
(Please print name and
address including zip code)
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint __________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:________________ _____________________________________
Signature
(Signature must conform in all respects to name
of holder as specified on the face of this
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)
Signature Guaranteed:
________________________
A-8
<PAGE>
[LETTERHEAD OF DORSEY & WHITNEY LLP]
Exhibit 5.1
Board of Directors
United HealthCare Corporation
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Re: Registration Statement on Form S-3 (Universal Shelf)
Ladies and Gentlemen:
We have acted as counsel to United HealthCare Corporation, a Minnesota
corporation (the "Company") and Depositor of UHC Capital I, UHC Capital II, UHC
Capital III and UHC Capital IV, each a Delaware business trust (each a "Trust"
and collectively the "Trusts"), in connection with a Registration Statement on
Form S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
relating to (A) the proposed sale by the Company from time to time, of (i) its
unsecured debt securities, which may be either senior debt securities (the
"Senior Debt Securities") or subordinated debt securities (the "Subordinated
Debt Securities" and, together with the Senior Debt Securities, the "Debt
Securities"), in one or more series; (ii) shares of its preferred stock, $.001
par value per share (the "Preferred Stock"), in one or more series; (iii)
depositary shares (the "Depositary Shares") representing fractional shares of
Preferred Stock and evidenced by depositary receipts, in one or more series (iv)
shares of its common stock, par value $.01 per share (the "Common Stock"); (v)
warrants to purchase Debt Securities (the "Debt Securities Warrants"), in one or
more series, Preferred Stock (the "Preferred Stock Warrants"), in one or more
series or Common Stock (the "Common Stock Warrants" and together with the Debt
Securities Warrants and the Preferred Stock Warrants, the "Securities
Warrants"); and (vi) the guarantee by the Company of the Preferred Securities
(as hereinafter defined) of each of the Trusts (the "Guarantees"), (B) the
proposed sale by the Company from time to time, in one or more series, to the
Trusts, of the Company's junior subordinated deferrable interest debentures (the
"Junior Subordinated Debentures") and (C) the proposed sale by each of the
Trusts of its preferred securities (the "Preferred Securities") from time to
time, in one or more series for an aggregate initial public offering price of up
to $1,050,000,000 (the Debt Securities, Preferred Stock, Depositary Shares,
Common Stock, Securities Warrants, Guarantees, Junior Subordinated Debentures
and Preferred Securities are hereinafter collectively referred to as the
"Securities").
<PAGE>
January 11, 1999
Page 2
We have examined such documents, including resolutions adopted by the
Board of Directors on August 4, 1998 with respect to the Registration Statement
and the Securities (the "Resolutions"), and have reviewed such questions of law,
as we have deemed necessary for the purposes of rendering our opinions set forth
below. In rendering our opinions set forth below, we have assumed, with respect
to all parties to agreements or instruments relevant hereto other than the
Company and the Trusts, that such parties had or will have the requisite power
and authority (corporate and otherwise) to execute, deliver and perform such
agreements or instruments, that such agreements or instruments have been or will
have been duly authorized by all requisite action (corporate and otherwise),
executed and delivered by such parties and that such agreements or instruments
are or will be the valid, binding and enforceable obligations of such parties.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Indentures, the Trust Agreement and the
Guarantees, each in the form incorporated by reference as exhibits to the
Registration Statement.
Based on the foregoing, we are of the opinion that:
1. When the issuance of a series of Debt Securities has been authorized
by the Board of Directors, the applicable Indenture has been executed and
delivered by the Company and the applicable Trustee in substantially the form
filed as an exhibit to the Registration Statement, and the specific terms of
such series of Debt Securities have been specified in a supplemental indenture
or an Officer's Certificate which has been executed and delivered to such
Trustee by an authorized officer of the Company in accordance with the terms of
such Indenture, such series of Debt Securities will have been duly authorized by
all requisite corporate action and, when executed and authenticated as specified
in such Indenture and delivered against payment therefor pursuant to the terms
described in the Registration Statement, will constitute valid and binding
obligations of the Company, enforceable in accordance with the terms of such
series.
2. When the issuance of a series of Preferred Stock has been authorized
by the Board of Directors, the rights and preferences of such series of
Preferred Stock have been specified in a Certificate of Designations duly
adopted by the Board of Directors in substantially the form filed as an exhibit
to the Registration Statement, and such Certificate of Designations has been
duly filed with the Secretary of State of the State of Minnesota, such series of
Preferred Stock will have been duly authorized by all requisite corporate action
and, upon issuance, delivery and payment therefor as described in the
Registration Statement, will be validly issued, fully paid and nonassessable.
3. When the issuance of a series of Depositary Shares has been
authorized by the Board of Directors,
<PAGE>
January 11, 1999
Page 3
the Depositary Agreement (the "Depositary Agreement") has been executed and
delivered by the Company and the Depositary in substantially the form filed as
an exhibit to the Registration Statement, and the specific terms of such
Depositary Shares have been specified in such Depositary Agreement, such
Depositary Shares will have been duly authorized by all requisite corporate
action and, upon issuance, delivery and payment therefor as described in the
Registration Statement, will be validly issued, fully paid and nonassessable.
4. When a particular issuance of shares of Common Stock has been
authorized by the Board of Directors, such Common Stock will have been duly
authorized by all requisite corporate action and, upon issuance, delivery and
payment therefor as described in the Registration Statement, will be validly
issued, fully paid and nonassessable.
5. When the issuance of a series of Junior Subordinated Debentures has
been authorized by the Board of Directors or has been authorized by officers of
the Company pursuant to authority granted in the Resolutions, the applicable
Indenture has been executed and delivered by the Company and the applicable
Trustee in substantially the form filed as an exhibit to the Registration
Statement, and the specific terms of such series of Junior Subordinated
Debentures have been specified in a supplemental indenture or an Officer's
Certificate, which has been executed and delivered to such Trustee by an
authorized officer of the Company in accordance with the terms of such
Indenture, such series of Junior Subordinated Debentures will have been duly
authorized by all requisite corporate action and, when executed and
authenticated as specified in such Indenture and delivered against payment
therefor pursuant to the terms described in the Registration Statement, will
constitute valid and binding obligations of the Company, enforceable in
accordance with the terms of such series.
6. When the issuance of Securities Warrants has been authorized by the
Board of Directors or has been authorized by officers of the Company pursuant to
authority granted in the Resolutions, each of the Common Stock Warrant
Agreement, Preferred Stock Warrant Agreement and the Debt Securities Warrant
Agreement (individually a "Warrant Agreement and, collectively the "Warrant
Agreements"), has been executed and delivered by the Company and the applicable
Warrant Agent in substantially the forms filed as exhibits to the Registration
Statement, and the specific terms of such Securities Warrants have been
specified in such Warrant Agreements, such Securities Warrants will have been
duly authorized by all requisite corporate action and, when executed and
authenticated as specified in such Warrant Agreements and delivered against
payment therefor pursuant to the terms described in the Registration Statement,
will constitute valid and binding obligations of the Company, enforceable in
accordance with their terms.
7. When the Guarantees have been authorized by the Board of Directors
or have been authorized by officers of the Company pursuant to authority granted
in the Resolutions, and
<PAGE>
January 11, 1999
Page 4
when executed and delivered by the Company and the applicable Trustee in
substantially the form filed as an exhibit to the Registration Statement, such
Guarantees will constitute the valid and binding obligations of the Company,
enforceable in accordance with their terms.
The opinions set forth above are subject to the following
qualifications and exceptions:
(a) Our opinions in paragraphs 1, 5, 6 and 7 above are subject
to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar law of general application affecting
creditors' rights, and to the effect of general principles of equity,
including (without limitation) concepts of materiality, reasonableness,
good faith and fair dealing, and other similar doctrines affecting the
enforceability of agreements generally (regardless of whether
considered in a proceeding in equity or at law).
(b) Our opinion in paragraph 7 above, insofar as it relates to
indemnification provisions, is subject to the effect of federal and
state securities laws and public policy relating thereto.
(c) In rendering the opinions set forth above, we have assumed
that, at the time of the authentication and delivery of a series of
Securities, the Resolutions referred to above will not have been
modified or rescinded, there will not have occurred any change in the
law affecting the authorization, execution, delivery, validity or
enforceability of the Securities, the Registration Statement will have
been declared effective by the Commission and will continue to be
effective, none of the particular terms of a series of Securities will
violate any applicable law and neither the issuance and sale thereof
nor the compliance by the Company and the Trusts with the terms thereof
will result in a violation of any agreement or instrument then binding
upon the Company and the Trusts or any order of any court or
governmental body having jurisdiction over the Company and the Trusts.
(d) As of the date of this opinion, a judgment for money in an
action based on a debt security denominated in a foreign currency or
currency unit in a federal or State court in the United States
ordinarily would be enforced in the United States only in United States
dollars. The date used to determine the rate of conversion into United
States dollars of the foreign currency or currency unit in which a
particular debt security is denominated will depend upon various
factors, including which court renders the judgment. Under Section 27
of the New York Judiciary Law, a state court in the State of New York
rendering a judgment on a debt security would be required to render
such judgment in the foreign currency or currency unit in which such
debt security is denominated, and such judgment would be converted into
United States dollars at the exchange rate prevailing on the date of
entry of the judgment.
<PAGE>
January 11, 1999
Page 5
(e) Minnesota Statutes ss. 290.371, Subd. 4, provides that any
corporation required to file a Notice of Business Activities Report
does not have a cause of action upon which it may bring suit under
Minnesota law unless the corporation has filed a Notice of Business
Activities Report and provides that the use of the courts of the State
of Minnesota for all contracts executed and all causes of action that
arose before the end of any period for which a corporation failed to
file a required report is precluded. Insofar as our opinion may relate
to the valid, binding and enforceable character of any agreement under
Minnesota law or in a Minnesota court, we have assumed that any party
seeking to enforce such agreement has at all times been, and will
continue at all times to be, exempt from the requirement of filing a
Notice of Business Activities Report or, if not exempt, has duly filed,
and will continue to duly file, all Notice of Business Activities
Reports.
The opinions expressed above are limited to the laws of the States of
Minnesota and New York and the federal laws of the United States of America.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "
Legal Matters" contained in the Prospectus included therein.
Very truly yours,
/s/ Dorsey & Whitney LLP
<PAGE>
Exhibit 5.2
[RICHARDS, LAYTON & FINGER LETTERHEAD]
January 11, 1999
United HealthCare Corporation
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Re: UHC Capital Trust I-V
Ladies and Gentlemen:
We have acted as special Delaware counsel for United HealthCare
Corporation, a Minnesota corporation (the "Company"), UHC Capital I, a Delaware
business trust ("Trust I"), UHC Capital II, a Delaware business trust ("Trust
II"), UHC Capital III, a Delaware business trust ("Trust III"), and UHC Capital
IV, a Delaware business trust ("Trust IV") (Trust I, Trust II, Trust III and
Trust IV are hereinafter collectively referred to as the "Trusts" and sometimes
hereinafter individually referred to as a "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of Trust I, as filed with the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
October 20, 1998;
(b) The Certificate of Trust of Trust II, as filed with the office of
the Secretary of State on October 20, 1998;
(c) The Certificate of Trust of Trust III, as filed with the office of
the Secretary of State on October 20, 1998;
(d) The Certificate of Trust of Trust IV, as filed with the office of
the Secretary of State on October 20, 1998;
<PAGE>
United HealthCare Corporation
January 11, 1999
Page 2
(e) The Trust Agreement of Trust I, dated as of October 20, 1998 among
the Company and the trustees named therein;
(f) The Trust Agreement of Trust II, dated as of October 20, 1998 among
the Company and the trustees named therein;
(g) The Trust Agreement of Trust III, dated as of October 20, 1998
among the Company and the trustees named therein;
(h) The Trust Agreement of Trust IV, dated as of October 20, 1998 among
the Company and the trustees named therein;
(i) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus") relating to the
Preferred Securities of the Trusts representing preferred undivided beneficial
interests in the assets of the Trusts (each, a "Preferred Security" and
collectively, the "Preferred Securities"), filed by the Company and the Trusts
with the Securities and Exchange Commission;
(j) A form of Amended and Restated Trust Agreement for each of the
Trusts, to be entered into between the Company, the trustees of the Trust named
therein, and the holders, from time to time, of the undivided beneficial
interests in the assets of such Trust (collectively, the "Trust Agreements" and
individually, a "Trust Agreement"), attached as an exhibit to the Registration
Statement; and
(k) A Certificate of Good Standing for each of the Trusts, dated
January 11, 1999, obtained from the Secretary of State.
Initially capital terms used herein and not otherwise defined are used
as defined in the Trust Agreements.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (k) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (k) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
<PAGE>
United HealthCare Corporation
January 11, 1999
Page 3
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that each of the
Trust Agreements will constitute the entire agreement among the parties thereto
with respect to the subject matter thereof, including with respect to the
creation, operation and termination of the applicable Trust, and that the Trust
Agreements and the Certificates of Trust will be in full force and effect and
will not be amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trusts (collectively, the "Preferred
Security Holders") of a Preferred Security Certificate for such Preferred
Security and the payment for such Preferred Security, in accordance with the
Trust Agreements and the Registration Statement, and (vii) that the Preferred
Securities are authenticated, issued and sold to the Preferred Security Holders
in accordance with the Trust Agreements and the Registration Statement. We have
not participated in the preparation of the Registration Statement or the
Prospectus and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder which are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. Each of the Trusts has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities of each Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the applicable
Trust.
<PAGE>
United HealthCare Corporation
January 11, 1999
Page 4
3. The Preferred Securities Holders, as beneficial owners of the
applicable Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the Trust
Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger
EAM
<PAGE>
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Dollars in 000's
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------------------------------------------
1997 1996 1995 1994 1993
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Earnings:
Earnings from Continuing Operations 742,000 596,000 461,000 506,000 336,000
Add Back
Fixed charges less interest capitalized 72,035 78,593 43,771 30,163 26,046
------------ ------------ ------------ ------------ ------------
Total earnings 814,035 674,593 504,771 536,163 362,046
============ ============ ============ ============ ============
Fixed Charges:
Interest, capitalized and expensed 3,735 593 771 2,163 3,046
Interest component of rental payments 72,000 78,000 43,000 28,000 23,000
------------ ------------ ------------ ------------ ------------
Total fixed charges 75,735 78,593 43,771 30,163 26,046
============ ============ ============ ============ ============
Ratio of Earnings to Fixed Charges 10.75 8.58 11.53 17.78 13.90
============ ============ ============ ============ ============
</TABLE>
For purposes of computing this ratio, earnings represent income from continuing
operations before extraordinary items. Fixed charges represent interest expense,
including amounts capitalized plus the interest factor in rental expense.
Earnings were insufficient to cover fixed charges by $250 million for the nine
months ended September 30, 1998. Excluding the realignment charge of $725
million taken by United HealthCare in the second quarter of 1998, the pro forma
ratio of earnings to fixed charges would have been 8.26.
<PAGE>
EXHIBIT 12.2
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Dollars in 000's
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------------------------
1997 1996 1995 1994 1993
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Earnings:
Earnings from Continuing Operations 742,000 596,000 461,000 506,000 336,000
Add back
Fixed charges less interest capitalized 72,035 78,593 43,771 30,163 26,046
------- ------- ------- ------- -------
Total earnings 814,035 674,593 504,771 536,163 362,046
======= ======= ======= ======= =======
Fixed Charges:
Interest, capitalized and expensed 3,735 593 771 2,163 3,046
Interest component of rental payments 72,000 78,000 43,000 28,000 23,000
Convertible Preferred Stock Dividends 46,748 46,748 11,688 -- --
------- ------- ------- ------- -------
Total fixed charges 122,483 125,341 55,459 30,163 26,046
======= ======= ======= ======= =======
Preferred Stock Dividends:
Amount declared 28,750 28,750 7,188 -- --
------- ------- ------- ------- -------
Gross up to pretax based on 38.5% effective tax rate 46,748 46,748 11,688 -- --
======= ======= ======= ======= =======
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends 6.65 5.38 9.10 17.78 13.90
======= ======= ======= ======= =======
</TABLE>
For purposes of computing this ratio, earnings represent income from continuing
operations before extraordinary items. Fixed charges represent interest expense,
including amounts capitalized plus the interest factor in rental expense and
preferred stock dividend requirements, adjusted to a pretax basis on the
outstanding preferred stock of United HealthCare. Earnings were insufficient to
cover fixed charges by $291 million for the nine months ended September 30,
1998. Excluding the realignment charge of $725 million taken by United
HealthCare in the second quarter of 1998, the pro forma ratio of earnings to
fixed charges and preferred stock dividends would have been 5.35.
<PAGE>
EXHIBIT 15.1
LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION
January 11, 1999
United HealthCare Corporation:
We are aware that United HealthCare Corporation has incorporated by reference in
its Registration Statement No. 333-66013 on Form S-3 its Form 10-Q's for the
quarters ended March 31, June 30 and September 30, 1998, which includes our
reports dated May 7, August 6 and August 7, 1998 covering the unaudited interim
financial information contained therein. Pursuant to Regulation C of the
Securities Act of 1933, those reports are not considered a part of the
registration statement prepared or certified by our firm or a report prepared or
certified by our firm within the meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ ARTHUR ANDERSEN LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our reports dated
February 12, 1998 incorporated by reference in United HealthCare Corporation's
Form 10-K for the year ended December 31, 1997 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Minneapolis, Minnesota,
January 11, 1999
<PAGE>
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED HEALTHCARE CORPORATION
(Exact name of obligor as specified in its charter)
Minnesota 41-1321939
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Senior Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Name Address
<S> <C>
- -------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED HEALTHCARE CORPORATION
(Exact name of obligor as specified in its charter)
Minnesota 41-1321939
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1
filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-
1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED HEALTHCARE CORPORATION
(Exact name of obligor as specified in its charter)
Minnesota 41-1321939
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
SECTIcON 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UHC CAPITAL I
(Exact name of obligor as specified in its charter)
Delaware applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.5
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UHC CAPITAL II
(Exact name of obligor as specified in its charter)
Delaware applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.6
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UHC CAPITAL III
(Exact name of obligor as specified in its charter)
Delaware applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.7
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UHC CAPITAL IV
(Exact name of obligor as specified in its charter)
Delaware applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.8
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED HEALTHCARE CORPORATION
(Exact name of obligor as specified in its charter)
Minnesota 41-1321939
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Preferred Securities of UHC Capital I
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
---------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.9
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED HEALTHCARE CORPORATION
(Exact name of obligor as specified in its charter)
Minnesota 41-1321939
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Preferred Securities of UHC Capital II
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.10
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED HEALTHCARE CORPORATION
(Exact name of obligor as specified in its charter)
Minnesota 41-1321939
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Preferred Securities of UHC Capital III
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
<PAGE>
EXHIBIT 25.11
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
UNITED HEALTHCARE CORPORATION
(Exact name of obligor as specified in its charter)
Minnesota 41-1321939
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
300 Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip code)
______________________
Guarantee of Preferred Securities of UHC Capital IV
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
Name Address
<S> <C> <C>
- --------------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 31st day of December, 1998.
THE BANK OF NEW YORK
By: /s/MARY JANE SCHMALZEL
--------------------------
Name: MARY JANE SCHMALZEL
Title: VICE PRESIDENT
<PAGE>
Consolidated Report of Condition of EXHIBIT 7
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency and
coin............................................. $ 7,301,241
Interest-bearing balances......................... 1,385,944
Securities:
Held-to-maturity securities....................... 1,000,737
Available-for-sale securities..................... 4,240,655
Federal funds sold and Securities purchased
under agreements to resell........................ 971,453
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,788,269
LESS: Allowance for loan and
lease losses............632,875
LESS: Allocated transfer risk
reserve.......................0
Loans and leases, net of unearned income,
allowance, and reserve........................... 38,155,394
Assets held in trading accounts.................... 1,307,562
Premises and fixed assets (including capitalized
leases)........................................... 670,445
Other real estate owned............................ 13,598
Investments in unconsolidated subsidiaries and
associated companies.............................. 215,024
Customers' liability to this bank on acceptances
outstanding....................................... 974,237
Intangible assets.................................. 1,102,625
Other assets....................................... 1,944,777
-----------
Total assets....................................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices............................... $26,930,258
Noninterest-bearing...... 11,579,390
Interest-bearing......... 15,350,868
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 16,117,854
Noninterest-bearing...187,464
Interest-bearing...15,930,390
Federal funds purchased and Securities sold
under agreements to repurchase.................... 2,170,238
Demand notes issued to the U.S.Treasury............ 300,000
Trading liabilities................................ 1,310,867
Other borrowed money:
With remaining maturity of one year or less....... 2,549,479
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years.. 46,654
Bank's liability on acceptances executed and
outstanding....................................... 983,398
Subordinated notes and debentures.................. 1,314,000
Other liabilities.................................. 2,295,520
-----------
Total liabilities.................................. 54,018,268
-----------
EQUITY CAPITAL
Common stock....................................... 1,135,284
Surplus............................................ 731,319
Undivided profits and capital reserves............. 3,385,227
Net unrealized holding gains (losses) on
available-for-sale securities..................... 51,233
Cumulative foreign currency translation
adjustments....................................... (37,639)
-----------
Total equity capital............................... 5,265,424
-----------
Total liabilities and equity capital............... $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-
named bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot }
Thomas A. Renyi } Directors
Alan R. Griffith }
- -------------------------------------------------
