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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
REPUBLIC BANCORP, INC.
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(Exact name of registrant as specified in its charter)
KENTUCKY 61-0862051
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
601 WEST MARKET STREET, LOUISVILLE, KENTUCKY 40202
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be registered each class is to be registered
NONE NONE
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If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. / /
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. /X/
Securities Act registration statement file number to which this form
relates: 333-56583
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Securities to be registered pursuant to Section 12(g) of the Act:
CLASS A COMMON STOCK
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Title of each class
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This Registration Statement relates to the Class A Common Stock ("Class
A Common Stock"), no par value, of Republic Bancorp, Inc., a Kentucky
corporation (the "Registrant"). The Registrant has filed a registration
statement on Form S-1 (Registration No. 333-56583)(as amended, the "Form
S-1") under which the offering of shares of Class A Common Stock is being
registered under the Securities Act of 1933. At the time the Form S-1 is
declared effective, the Class A Common Stock will be deemed registered under
Section 12(g) of the Securities Exchange Act of 1934 (the "Act") pursuant to
General Instruction A.(d)(2) of this Form 8-A.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
TITLE AND AUTHORIZED SHARES: The title of the class of capital stock to
be registered is Class A Common Stock. The Registrant is authorized to issue
30,000,000 shares of Class A Common Stock, no par value per share.
In addition to the Class A Common Stock, the Registrant is also
authorized to issue 5,000,000 shares of Class B Common Stock having no par
value ("Class B Common Stock"), and 100,000 shares of Preferred Stock having
no par value (the "Preferred Stock").
VOTING RIGHTS. The holders of outstanding shares of Class A Common
Stock are entitled to one (1) vote for each share of Class A Common Stock on
all matters presented to a vote of the shareholders of the Registrant. The
Class A Common Stock votes together with the Class B Common Stock (which
carries the right to ten (10) votes per share) as a single voting group on
all matters except with respect to those matters for which separate voting is
required under Kentucky law.
In the election of directors, cumulative voting rules apply. Under
cumulative voting, each shareholder is entitled to vote the number of votes
of the shares owned by him on the record date multiplied by the number of
directors to be elected. Each shareholder may cast all of his or her votes
for a single nominee or may distribute his votes in any manner among as many
candidates as the shareholder sees fit.
The Registrant's Articles of Incorporation limit the right of
shareholders holding shares representing less than a majority of the voting
power of the then outstanding voting stock of the Registrant to call a
special meeting of the shareholders. Under the Articles of Incorporation,
special meetings of shareholders may only be called by the board of directors
or shareholders owning shares representing more than 50% of the votes
entitled to be cast by the holders of all voting stock of the Registrant then
outstanding. The affirmative vote of the holders of more than 50% of the
voting power of the then outstanding voting stock is required to amend this
provision of the Articles of Incorporation.
DIVIDENDS. Subject to any preferential rights of any shares of
Preferred Stock then outstanding, and applicable requirements of law, the
Class A Common Stock is entitled to dividends from funds legally available
therefor if, as and when declared by the board of directors of the Registrant.
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If any dividend is paid with respect to the Class B Common Stock, a
dividend of like kind must be declared and paid contemporaneously with
respect to the Class A Common Stock. If a cash dividend is paid on the Class
B Common Stock, a cash dividend must be paid on the Class A Common Stock in
an amount per share equal to 110% of the dividend paid per share on the Class
B Common Stock (rounded to the nearest $.0001). If a stock dividend, payable
in shares of Class B Common Stock, is paid on the Class B Common Stock, a
stock dividend, payable in shares of Class A Common Stock, must be paid on
the Class A Common Stock at the same per share rate. If a dividend is paid
on the Class B Common Stock other than in cash or shares of Class B Common
Stock, an equal dividend, on a per share basis, must be paid on the Class A
Common Stock.
The instruments under which the securities of the Registrant's
subsidiary, Republic Capital Trust, are outstanding prohibit the payment of
dividends on the Common Stock if the Company elects to defer payments on the
trust subsidiary's securities, as permitted by those instruments.
CONVERSION OR REDEMPTION. The Class A Common Stock is not convertible
into any other class of the Registrant's capital stock. The Class A Common
Stock is not subject to redemption or to any sinking fund.
PREEMPTIVE RIGHTS. Holders of the Class A Common Stock are not entitled
to preemptive rights with respect to any shares which may be issued.
DISSOLUTION. If the Registrant is dissolved, the holders of the Class
A Common Stock, together with the holders of the Class B Common Stock, will
be entitled to receive, pro rata based on the number of shares held, the
remaining assets of the Registrant after the satisfaction of the Registrant's
liabilities and any preferential liquidation rights of any then outstanding
shares of Preferred Stock of the Registrant.
ASSESSABILITY. Shares of Class A Common Stock issued against receipt
of the consideration authorized by the board of directors consisting of
property paid or services rendered are not subject to liability for further
calls or to assessment by the Registrant or for liabilities of the Registrant
imposed on its shareholders under Kentucky statutes.
ANTI-DILUTION PROVISION. The Registrant's Articles of Incorporation
require that, if there is a change in the number of issued and outstanding
shares of Class A Common Stock as a result of share split, reverse share
split, share dividend or similar recapitalization (a "Capital Change"), then
a Capital Change of like kind must be made in the issued and outstanding
shares of Class B Common Stock. Likewise, if there is a Capital Change in
the issued and outstanding shares of Class B Common Stock, a Capital Change
of like kind must occur in the issued and outstanding shares of Class A
Common Stock.
OTHER ASPECTS. The Articles of Incorporation of the Registrant do not
contain any restriction on the alienability of the Class A Common Stock or
any provision discriminating against any
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existing or prospective holder of shares of Class A Common Stock as a result
of such shareholder owning a substantial amount of securities.
The Preferred Stock is preferred as to the payment of dividends over the
Class A Common Stock and shall be preferred over the Class A Common Stock
upon liquidation, dissolution or winding up of the affairs of the Registrant.
The Registrant's Articles of Incorporation authorize the board of directors
of the Registrant to establish series of Preferred Stock and to fix the
relative rights and preferences of shares of the series established. The
authority vested in the board of directors by the Articles of Incorporation
includes the authority, within the limitations imposed by law and the
Articles of Incorporation, to fix and determine as to each series of
Preferred Stock:
[1] The voting rights and powers, if any, of the holders of shares of
such series;
[2] The number of shares and designation of such series;
[3] The annual dividend rate and whether cumulative, noncumulative, or
partially cumulative;
[4] The prices at which, and the terms and conditions on which, shares of
such series may be redeemed;
[5] The amounts payable on shares of such series in the event of any
voluntary or involuntary liquidation, dissolution, or winding up of
the affairs of the Registrant;
[6] Whether the shares of such series shall have a preference, as to the
payment of dividends or otherwise, over the shares of any other
series;
[7] The terms, if any, upon which shares of such series may be convertible
into, or exchangeable for, shares of any other class or classes or of
any other series of the same or any other class or classes, including
the price or prices and the rate of conversion or exchange, any
adjustments thereof, and all other terms and conditions;
[8] The sinking fund provisions, if any, for the redemption or purchase of
shares of such series; and
[9] Such other provisions as may be fixed by the board of directors of the
Registrant pursuant to Kentucky law.
To the extent the board of directors of the Registrant exercises this
authority granted it in the Articles of Incorporation, the fixing of the
relative rights, preferences and limitations of shares of Preferred Stock,
vis-a-vis the Class A Common Stock, could have the effect of modifying the
rights of holders of Class A Common Stock. The issuance of Preferred Stock may
have the effect of delaying, deferring or preventing a change in control of the
Registrant without further action by
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shareholders and may adversely affect the voting and other rights of the
holders of Class A Common Stock.
The Preferred Stock and, because of its voting rights, the Class B
Common Stock could be deemed to have an anti-takeover effect. If a hostile
takeover situation should arise, shares of Class B Common Stock and/or
Preferred Stock could be issued to purchasers sympathetic with the
Registrant's management or others in such a way as to render more difficult
or to discourage a merger, tender offer, proxy contest, the assumption of
control by a holder of a large block of the Registrant's securities or the
removal of incumbent management.
The effects of the issuance of a series of the Preferred Stock on the
holders of Class A Common Stock could include, among other things, (i)
reduction of the amount otherwise available for payments of dividends on
Class A Common Stock if dividends are payable on the series of Preferred
Stock; (ii) restrictions on dividends on Class A Common Stock if dividends on
the series of Preferred Stock are in arrears; (iii) dilution of the voting
power of Class A Common Stock if the series of Preferred Stock has voting
rights, including a possible "veto" power if the series of Preferred Stock
has class voting rights; (iv) dilution of the equity interest of holders of
Class A Common Stock if the series of Preferred Stock is convertible, and is
converted, into Class A Common Stock; and (v) restrictions on the rights of
holders of Class A Common Stock to share in the Registrant's assets upon
liquidation until satisfaction of any liquidation preference granted to the
holders of the series of Preferred Stock. Holders of Class A Common Stock
have no preemptive rights to purchase or otherwise acquire any Preferred
Stock that may be issued.
ELIMINATION OF CERTAIN LIABILITIES AND INDEMNIFICATION RIGHTS. The
Articles of Incorporation of the Registrant limit the liability of directors
to the Registrant and its shareholders to the maximum extent permitted by
applicable law. Under Section 271B.2-020 of the Kentucky Business
Corporation Act, the personal liability of a director may not be eliminated
or limited for the following actions: (i) for any transaction in which the
director's personal financial interest is in conflict with the financial
interests of the corporation or its shareholders; (ii) for acts or omissions
not in good faith or which involve intentional misconduct or are known by the
director to violate law; (iii) actions involving an unlawful distribution in
violation of KRS 271B.8-330; and (iv) for any transaction from which the
director derived an improper personal benefit. If the Kentucky General
Assembly expands the types of director liabilities that can be eliminated or
limited, the personal liability of directors of the Registrant under the
Articles of Incorporation will likewise be eliminated or limited without any
further action by shareholders.
Under Kentucky law, a corporation has broad powers of indemnification.
A person may be indemnified for judgments, penalties, fines, settlements,
and reasonable expenses incurred by that person in proceedings in connection
with the person's official capacity in the corporation. Indemnification
against reasonable legal expenses incurred by a person in such a proceeding
is mandatory when the person is wholly successful in the defense of the
proceeding. The Bylaws of the Registrant also require the Registrant to
indemnify, and permit the Registrant to advance expenses to, all directors,
officers, employees or agents of the Registrant who were or are threatened
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to be made a defendant or respondent to any threatened, pending or completed
action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he or she is or was a director,
officer, employee or agent of the Registrant, to the fullest extent that is
expressly permitted or required by the Kentucky statutes and all other
applicable law.
CONFLICT OF INTEREST TRANSACTIONS. The Articles of Incorporation
provide that the Registrant may enter into conflict of interest transactions
with officers, directors and/or shareholders. According to the Articles of
Incorporation, a conflict of interest transaction that is approved by
shareholders holding a majority of the voting power is valid and binding as
though ratified by every shareholder of the Registrant.
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ITEM 2. EXHIBITS.
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The following exhibits are filed as a part of this registration
statement:
1. Articles of Incorporation of Republic Bancorp, Inc., as amended
(incorporated by reference to Exhibit 3(i) to the Registration
Statement on Form S-1 of Republic Bancorp, Inc. (Registration
No. 333-56583), filed with the Securities and Exchange Commission
on July 7, 1998, pursuant to the Securities Act of 1933)
2. Bylaws of Republic Bancorp, Inc., as amended (incorporated by
reference to Exhibit 3(ii) to the Registration Statement on
Form S-1 of Republic Bancorp, Inc. (Registration No. 333-56583),
filed with the Securities and Exchange Commission on July 20, 1998,
pursuant to the Securities Act of 1933)
3. Declaration of Trust for Republic Capital Trust, dated as of
February 5, 1997
4. Indenture, dated as of February 5, 1997, between Republic
Bancorp, Inc. and Steven E. Trager, as Trustee, relating to the
securities issued by Republic Capital Trust
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Date: July 20, 1998 REPUBLIC BANCORP, INC.
By /s/ Steven E. Trager
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Steven E. Trager,
President and Chief Executive Officer
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Exhibit Index
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Exhibit No. Description
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1 Articles of Incorporation of Republic Bancorp, Inc., as
amended (incorporated by reference to Exhibit 3(i) to the
Registration Statement on Form S-1 of Republic Bancorp,
Inc. (Registration No. 333-56583), filed with the
Securities and Exchange Commission on July 7, 1998 pursuant
to the Securities Act of 1933)
2 Bylaws of Republic Bancorp, Inc., as amended (incorporated
by reference to Exhibit 3(ii) to the Registration Statement
on Form S-1 of Republic Bancorp, Inc. (Registration No.
333-56583), filed with the Securities and Exchange
Commission on July 20, 1998, pursuant to the Securities Act
of 1933)
3 Declaration of Trust for Republic Capital Trust, dated as
of February 5, 1997
4 Indenture, dated as of February 5, 1997, between Republic
Bancorp, Inc. and Steven E. Trager, as Trustee, relating to
the securities issued by Republic Capital Trust
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DECLARATION OF TRUST
REPUBLIC CAPITAL TRUST
Dated as of February 5, 1997
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DECLARATION OF TRUST
OF
REPUBLIC CAPITAL TRUST
February 5, 1997
DECLARATION OF TRUST ("Declaration") dated and effective as of February 5,
1997, by the Trustees (as defined herein), the Sponsor (as defined herein) and
by the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor hereby wish to establish Republic
Capital Trust (the "Trust"), a trust under the Business Trust Act pursuant to
this Declaration and the filing of a Certificate of Trust with the Secretary of
State of the State of Delaware, for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets of
the Trust and investing the proceeds thereof in certain Subordinated Debt
Securities of the Debt Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
NOW, THEREFORE, it being the intention of the parties hereto to establish
the Trust as a business trust under the Business Trust Act and that this
Declaration constitutes the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Declaration unless otherwise specified;
(e) a reference to the singular includes the plural and vice versa.
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"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"AUTHORIZED OFFICER" of a Person means any Person that is authorized to
bind such Person.
"BUSINESS DAY" means any day other than a day on which federal or state
banking institutions in the City of Louisville, Kentucky, are authorized or
obligated by law, executive order or regulation to close.
"BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time, or any
successor legislation.
"CERTIFICATES" shall mean the certificates representing the Common
Securities and the Preferred Securities.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON SECURITIES" has the meaning specified in Section 6.1(a).
"COMMON SECURITIES GUARANTY" means the guarantee agreement to be dated as
of February 5, 1997 of the Sponsor in respect of the Common Securities.
"COMMON SECURITY CERTIFICATE" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-2.
"COMPANY INDEMNIFIED PERSON" means (a) any Republic Trustee or Property
Trustee or Conversion Agent; (b) any Affiliate of any Republic Trustee or
Property Trustee or Conversion Agent; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Republic Trustee
or Property Trustee or Conversion Agent; or (d) any officer, employee or agent
of the Trust or its Affiliates.
"COVERED PERSON" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"DEBT" means the Subordinated Debt Securities to be issued by the Debt
Issuer from time to time pursuant to the Indenture.
"DEBT EVENT OF DEFAULT" means an Event of Default as defined in the
Indenture.
"DEBT ISSUER" means Republic Bancorp, Inc., a Kentucky corporation, in its
capacity as issuer of the Debt under the Indenture, and any successor entity in
a merger, consolidation or amalgamation.
"DELAWARE TRUSTEE" has the meaning set forth in Section 4.2.
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"DISSOLUTION EVENT" has the meaning set forth in Annex I hereto.
"DISTRIBUTION" means a distribution payable to Holders of Securities in
accordance with Section 5.1.
"EVENT OF DEFAULT" in respect of the Securities means a Debt Event of
Default has occurred and is continuing in respect of the Debt.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"FIDUCIARY INDEMNIFIED PERSON" has the meaning set forth in Section 9.4(b).
"HOLDER" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"INDEMNIFIED PERSON" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"INDENTURE" means the Indenture between the Debt Issuer and Steven Trager
as Indenture Trustee, dated February 5, 1997, pursuant to which the Debt is to
be issued.
"INITIAL CLOSING DATE" means the "INITIAL CLOSING DATE" under the Purchase
Agreement.
"INTEREST" means any interest due on the Debt including any Compounded
Interest, and Additional Interest (as such terms are defined in the Indenture).
"INVESTMENT COMPANY" means an investment company as defined in the
Investment Company Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"LEGAL ACTION" has the meaning set forth in Section 2.6(g).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
provided in the terms of the Preferred Securities, Holder(s) of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"MINISTERIAL ACTION" has the meaning set forth in the terms of the
Securities as set forth in Annex I.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated
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association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"PREFERRED SECURITIES" means the Preferred Securities referred to in
Section 6.1 hereof.
"PREFERRED SECURITIES GUARANTY" means the guarantee agreement to be dated
as of February 5, 1997, of the Sponsor in respect of the Preferred Securities.
"PREFERRED SECURITY CERTIFICATE" means a definitive certificate in fully
registered form representing a Preferred Security substantially in the form of
Exhibit A-1.
"PROPERTY TRUSTEE" means the Trustee as set forth in Section 2.12.
"PURCHASE AGREEMENTS" means the Subscription Agreements for the offering
and sale of Preferred Securities in the form of Exhibit C.
"QUORUM" means a majority of the Republic Trustees or, if there are only
two Republic Trustees, both of them.
"RELATED PARTY" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"REPUBLIC COMMON STOCK" means the Class A Common Stock of Republic Bancorp,
Inc.
"RESPONSIBLE OFFICER" means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time or any successor legislation.
"SECURITIES GUARANTIES" means the Common Securities Guaranty and the
Preferred Securities Guaranty.
"SPONSOR" means the Debt Issuer or any successor entity in a merger,
consolidation or amalgamation, in its capacity as sponsor of the Trust.
"SUBORDINATED DEBT SECURITIES" means the 8.5% Convertible Subordinated
Debentures to be issued by the Debt Issuer under the Indenture and to be held by
the Property Trustee.
"TAX EVENT" has the meaning set forth in Annex I hereto.
"TREASURY REGULATIONS" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such
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regulations may be amended from time to time (including corresponding
provisions of succeeding regulations).
"TRUSTEE" or "TRUSTEES" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 NAME. The Trust is named "Republic Capital Trust," as such
name may be modified from time to time by the Republic Trustees following
written notice to the Holders of Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Republic Trustees.
SECTION 2.2 OFFICE. The address of the principal office of the Trust is 601
WEST MARKET STREET, Louisville, Kentucky 40202. On ten Business Days' written
notice to the Holders of Securities, the Republic Trustees may designate another
principal office.
SECTION 2.3 PURPOSE. The exclusive purposes and functions of the Trust are
(a) to issue and sell Securities representing undivided beneficial interests in
the assets of the Trust, (b) investing the gross proceeds from such sale to
acquire the Debt and (c) except as otherwise limited herein, to engage in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 2.4 AUTHORITY. Subject to the limitations provided in this
Declaration, the Republic Trustees shall have exclusive and complete authority
to carry out the purposes of the Trust. An action taken by the Republic
Trustees in accordance with their powers shall constitute the act of and serve
to bind the Trust. In dealing with the Trustees acting on behalf of the Trust,
no person shall be required to inquire into the authority of the Trustees to
bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
SECTION 2.5 TITLE TO PROPERTY OF THE TRUST. Except as otherwise provided
in this Declaration, legal title to all assets of the Trust shall be vested in
the Trust. The Holders shall not have legal title to any part of the assets of
the Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 2.6 POWERS AND DUTIES OF THE REPUBLIC TRUSTEES. The Republic
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
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(a) to issue and sell the Preferred Securities and the Common Securities
in accordance with this Declaration; PROVIDED, HOWEVER, that the Trust may issue
no more than one series of Preferred Securities and no more than one series of
Common Securities, and, PROVIDED, FURTHER, that there shall be no interests in
the Trust other than the Securities;
(b) in connection with the issue and sale of the Preferred Securities, at
the direction of the Sponsor, to execute and enter into the Purchase Agreements
and other related agreements providing for the sale of the Preferred Securities;
(c) to acquire the Debt with the proceeds of the sale of the Preferred
Securities and the Common Securities;
(d) to give the Sponsor prompt written notice of the occurrence of a Tax
Event or Dissolution Event; PROVIDED, that the Republic Trustees shall consult
with the Sponsor before taking or refraining from taking any Ministerial Action
in relation to a Tax Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Republic Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action");
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(j) to give prompt written notice to the Holders of the Securities of any
notice received from the Debt Issuer of its election to defer payments of
interest on the Debt by extending the interest payment period under the
Indenture;
(k) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(l) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
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(m) to take any action, not inconsistent with this Declaration or with
applicable law, that the Republic Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debt Issuer to ensure that the Debt
will be treated as indebtedness of the Debt Issuer for United States federal
income tax purposes, provided, that such action does not adversely affect the
interests of Holders; and
(n) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Republic Trustees, on behalf of the Trust.
The Republic Trustees must exercise the powers set forth in this Section in
a manner that is consistent with the purposes and functions of the Trust set out
herein, and the Republic Trustees shall not take any action that is inconsistent
with the purposes and functions of the Trust set forth herein.
Any expenses incurred by the Republic Trustees pursuant to this Section
shall be reimbursed by the Debt Issuer.
SECTION 2.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES. (a) The
Trust shall not, and the Trustees on behalf of the Trust shall not, engage in
any activity other than as required or authorized by this Declaration. In
particular, the Trust shall not, and, the Trustees shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the Debt,
but shall distribute all such proceeds to Holders of Securities pursuant to the
terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debt;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Securities; or
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(vii) other than as provided in this Declaration (including Annex 1),
(A) waive any past default that is waivable under the Indenture, (B) exercise
any right to rescind or annul any declaration that the principal of all the Debt
shall be due and payable, or (C) consent to any amendment, modification or
termination of the Indenture or the Debt where such consent shall be required
unless the Trust shall have received an opinion of counsel to the effect that
such modification will not cause more than an insubstantial risk that for United
States federal income tax purposes the Trust will not be classified as a grantor
trust.
SECTION 2.8 EXECUTION OF DOCUMENTS. Unless otherwise determined by the
Republic Trustees, and except as otherwise required by the Business Trust Act,
any one Republic Trustee is authorized to execute on behalf of the Trust any
documents that the Republic Trustees have the power and authority to execute
pursuant to Section 2.6.
SECTION 2.9 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained in this Declaration and the Securities shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration or the
Securities.
SECTION 2.10 DURATION OF TRUST. The Trust, unless terminated pursuant to
the provisions of Article VII hereof, shall have existence for fifty-five (55)
years from the Initial Closing Date.
SECTION 2.11 MERGERS. (a) The Trust may not 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 corporation or other body, except as
described in Section (b) and (c) below.
(b) The Trust may, with the consent of the Republic Trustees or, if there
are more than two, a majority of the Republic Trustees and without the consent
of the Holders of the Securities or the Delaware Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any State; provided that:
(i) such successor entity (the "SUCCESSOR ENTITY") either:
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the 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 with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the Holders of the
Securities (including any Successor Securities) in any material respect (other
than with respect to any dilution of such Holders' interests in the Successor
Entity as a result of such merger, consolidation, amalgamation or replacement);
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(iii) such Successor Entity has a purpose identical to that of the
Trust;
(iv) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of independent counsel to the
Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holders' interest
in the Successor Entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be required to
register as an Investment Company;
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to be
classified as a grantor trust for United States federal income tax
purposes; and
(v) the Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided by the Preferred
Securities Guaranty.
(c) Notwithstanding (b) above, the Trust shall not, except with the
consent of Holders of 100% in liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
SECTION 2.12 PROPERTY TRUSTEE. (a) The legal title to the Debt shall be
owned by and held of record in the name of the Property Trustee in trust for the
benefit of the Holders of the Securities. The right, title and interest of the
Property Trustee to the Debt shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 4.6. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debt have been executed and delivered.
(b) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account in the name of and under the exclusive control of the Property Trustee
on behalf of the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debt held by the Property Trustee, deposit such
funds into such account and make payments to the Holders of the Preferred
Securities and Holders of the Common Securities from the account in accordance
with Section 5.1;
(ii) engage in such ministerial activities as so directed and as
shall be necessary or appropriate to effect the redemption of the Preferred
Securities and the Common
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Securities to the extent the Debt is redeemed or matures, or for the
conversion of Securities to the extent Securities are converted into Republic
Common Stock; and
(iii) upon written notice of distribution issued by the Republic
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as so directed as shall be necessary or appropriate to
effect the distribution of the Debt to Holders of Securities upon the occurrence
of a Dissolution Event or Tax Event.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
the Securities.
(e) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debt under the Indenture and, if an
Event of Default occurs and is continuing, the Property Trustee shall, for the
benefit of Holders of the Securities, but subject to the rights of the Holders
pursuant to the terms of such Securities, enforce its rights as holder of the
Debt, including the right to take any Legal Action which arises out of or in
connection with such an Event of Default.
ARTICLE III
SPONSOR
SECTION 3.1 SPONSOR'S PURCHASE OF COMMON SECURITIES. The Sponsor will
purchase all of the Common Securities issued by the Trust, in an amount at least
equal to 3.0% of the capital of the Trust, at the same time as the Preferred
Securities are first sold.
SECTION 3.2 RESPONSIBILITIES OF THE SPONSOR. In connection with the issue
and sale of the Preferred Securities, the Sponsor shall have the exclusive right
and responsibility to negotiate the terms of the Purchase Agreements and other
related agreements providing for the sale of the Preferred Securities.
SECTION 3.3 OBLIGATIONS AS GUARANTOR. The Sponsor hereby guarantees
payment of all amounts payable with respect to the Securities to the extent and
on the terms and conditions set out in the Securities Guaranties, which are
incorporated herein by reference.
ARTICLE IV
TRUSTEES
SECTION 4.1 NUMBER OF TRUSTEES. The number of Trustees initially shall be
four (4), and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; PROVIDED, HOWEVER, that, the number of Trustees shall in
no event be less than two (2); PROVIDED, FURTHER, that (1) there
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shall be a Delaware Trustee if required by Section 4.2; and (2) there shall
be at least one Trustee who is an employee or officer of, or is affiliated
with the Sponsor (a "Republic Trustee"). One of the Republic Trustees shall
serve as the Property Trustee. The initial Property Trustee shall be Steven
E. Trager.
SECTION 4.2 DELAWARE TRUSTEE. If required by the Business Trust Act, one
Trustee (the "DELAWARE TRUSTEE") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law.
SECTION 4.3 CERTAIN QUALIFICATIONS OF REPUBLIC TRUSTEES AND DELAWARE
TRUSTEE GENERALLY. Each Republic Trustee and the Delaware 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 Authorized Officers.
SECTION 4.4 REPUBLIC TRUSTEES. The initial Republic Trustees shall be:
A. Scott Trager
Steven E. Trager
L. Lee Kinsolving, Jr.
Except where a requirement for action by a specific number of Republic
Trustees is expressly set forth in this Declaration and except with respect to
any action the taking of which is the subject of a meeting of the Republic
Trustees, any action required or permitted to be taken by the Republic Trustees
may be taken by, and any power of the Republic Trustees may be exercised by, or
with the consent of, any one such Republic Trustee.
SECTION 4.5 DELAWARE TRUSTEE. The initial Delaware Trustee shall be:
Wilmington Trust Company
SECTION 4.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES. (a) Subject
to Section 4.6(b), Trustees may be appointed or removed without cause at any
time except during an Event of Default:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities, by the Holders of a
Majority in liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities.
(b) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 4.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 4.2 and 4.3 (A
"SUCCESSOR DELAWARE TRUSTEE") has been appointed and
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has accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Republic Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing signed by the Trustee and delivered to the Sponsor
and the Trust, which resignation shall take effect upon such delivery or upon
such later date as is specified therein; PROVIDED, HOWEVER, that no such
resignation of the Trustee that acts as the Delaware Trustee shall be effective
until a Successor Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee if the Delaware Trustee delivers
an instrument of resignation in accordance with this Section 4.6.
(e) If no Successor Delaware Trustee shall have been appointed and
accepted appointment as provided in this Section 4.6 within 60 days after
delivery of an instrument of resignation or removal, the Delaware Trustee
resigning or being removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Delaware Trustee.
(f) No Delaware Trustee shall be liable for the acts or omissions to act
of any Successor Delaware Trustee.
SECTION 4.7 VACANCIES AMONG TRUSTEES. If a Trustee ceases to hold office
for any reason and the number of Trustees is not reduced pursuant to Section
4.1, or if the number of Trustees is increased pursuant to Section 4.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by
the Republic Trustees or, if there are more than two, a majority of the Republic
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 4.6.
SECTION 4.8 EFFECT OF VACANCIES. The death, resignation, retirement,
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee shall not operate to annul the Trust. Whenever
a vacancy in the number of Republic Trustees shall occur, until such vacancy is
filled by the appointment of a Republic Trustee in accordance with Section 4.6,
the Republic Trustees in office, regardless of their number, shall have all the
powers granted to the Republic Trustees and shall discharge all the duties
imposed upon the Republic Trustees by this Declaration.
SECTION 4.9 MEETINGS. If there is more than one Republic Trustee, meetings
of the Republic Trustees shall be held from time to time upon the call of any
Republic Trustee. Regular meetings of the Republic Trustees may be held at a
time and place fixed by resolution of the Republic Trustees. Notice of any
in-person meetings of the Republic Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the
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Republic Trustees or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of a Republic
Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Republic Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the grounds that the meeting
has not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Republic Trustees may be taken at a meeting by
vote of a majority of the Republic Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of
the Republic Trustees. In the event there is only one Republic Trustee, any
and all action of such Republic Trustee shall be evidenced by a written
consent of such Republic Trustee.
SECTION 4.10 DELEGATION OF POWER. (a) Any Republic 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 2.6, including making any governmental filing; and
(b) the Republic Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Republic Trustees or otherwise as the Republic Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 4.11 CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any
corporation into which the Delaware Trustee may be merged or converted or with
which either may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Delaware Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Delaware Trustee shall be the successor of the Delaware 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.
ARTICLE V
DISTRIBUTIONS
SECTION 5.1 DISTRIBUTIONS. Holders shall receive Distributions (as defined
herein) in accordance with the applicable terms of the relevant Holder's
Securities. Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debt Issuer makes a payment of
interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)), premium and/or principal on
the Debt (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall, to the extent funds are available for that purpose, make a
distribution (a "Distribution") of the Payment Amount to Holders.
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ARTICLE VI
ISSUANCE OF SECURITIES
SECTION 6.1 GENERAL PROVISIONS REGARDING SECURITIES. (a) The Republic
Trustees shall on behalf of the Trust issue one class of preferred securities
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I (the "Preferred Securities") and one
class of common securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the "Common
Securities"). The Trust shall issue no securities or other interests in the
assets of the Trust other than the Preferred Securities and the Common
Securities and the aggregate liquidation amount of all series of Securities
issued by the Trust and outstanding at any time shall not exceed $10,000,000.
(b) The Certificates shall be signed on behalf of the Trust by a Republic
Trustee. Such signature shall be the manual signature of any present or any
future Republic Trustee. In case any Republic Trustee of the Trust who shall
have signed any of the Securities shall cease to be such Republic Trustee before
the Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates
had not ceased to be such Republic Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Security, shall be the Republic Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such person was not such a
Republic Trustee. Such signature shall be conclusive evidence that the
Preferred Security has been authenticated under this Declaration.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(e) Every Person, by virtue of having become a Holder in accordance with
the terms of this Declaration, shall be deemed to have expressly assented and
agreed to the terms of, and shall be bound by, this Declaration.
SECTION 6.3 FORM AND DATING. The Preferred Securities shall be
substantially in the form of Exhibit A-1 and the Common Securities shall be
substantially in the form of Exhibit A-2, each of which is hereby incorporated
in and expressly made a part of this Declaration. Certificates may be printed
or may be produced in any other manner as is reasonably acceptable to the
Republic Trustees, as conclusively evidenced by their execution thereof. The
Securities may have letters, numbers, notations or other marks of identification
or designation and such legends or endorsements required by law, agreements to
which the Trust is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Trust). The terms and
provisions of the Securities set forth in Annex I and the forms of Securities
set forth in Exhibits A-1 and A-2 are part of the terms of this Declaration and
to the extent applicable, the Sponsor, by its execution and delivery of this
Declaration, expressly agrees to such terms and provisions and to be bound
thereby and to execute as guarantor under the Securities Guaranties each
Certificate.
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SECTION 6.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If: (a) any
mutilated Certificates should be surrendered to the Republic Trustees, or if the
Republic Trustees shall receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Republic Trustees such security or
indemnity as may be required by them to keep each of them harmless; then, in the
absence of notice that such Certificate shall have been acquired by a bona fide
purchaser, any Republic Trustee on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In connection with
the issuance of any new Certificate under this Section, the Republic Trustees
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
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 6.5 CANCELLATION.
The Trust shall promptly cancel all Securities surrendered for registration
of transfer, payment, replacement or cancellation and shall dispose of canceled
Securities as the Trust directs. The Trust may not issue new Securities to
replace Securities that it has paid.
ARTICLE VII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 7.1 DISSOLUTION AND TERMINATION OF TRUST. (a) The Trust shall
dissolve:
(i) upon the bankruptcy of the Sponsor or the Debt Issuer;
(ii) upon the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor or the Debt Issuer, upon the consent of a Majority
in liquidation amount of the Securities voting together as a single class to
file a certificate of cancellation with respect to the Trust or the revocation
of the charter of the Sponsor or the Debt Issuer and the expiration of 90 days
after the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor, the Trust or the Debt Issuer;
(iv) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to the
Holders in accordance with the terms of the Securities;
(v) with the consent of the Holders of all of the Common Securities,
upon the occurrence and continuation of a Dissolution Event or a Tax Event
pursuant to which the Trust shall be dissolved in accordance with the terms of
the securities and the Debt shall, subject to the terms of the Securities, be
distributed to the Holders of Securities in exchange for the Securities;
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(vi) after the distribution of the Republic Common Stock to all
Holders upon conversion of all outstanding Securities;
(vii) before the issuance of any Securities, with the consent of
all of the Republic Trustees and the Sponsor; or
(viii) the expiration of the term of the Trust as set forth in
Section 2.10.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 7.1 (a), and following the winding up and liquidation of the Trust in
accordance with the terms of this Declaration and the Securities, the Trustees
shall terminate the Trust by filing a certificate of cancellation with the
Secretary of State of the State of Delaware.
ARTICLE VIII
TRANSFER OF INTERESTS
SECTION 8.1 GENERAL. (a) Where Preferred Securities are presented to the
Trust with a request to register a transfer or to exchange them for an equal
number of Preferred Securities represented by different certificates, the Trust
shall register the transfer or make the exchange if its requirements for such
transactions are met.
(b) Securities may only be transferred, in whole or in part, in accordance
with, the terms and conditions set forth in this Declaration and in the terms of
the Securities PROVIDED, HOWEVER, the Sponsor may not transfer the Common
Securities except to a Related Party, provided that any such transfer is subject
to the condition precedent that the transferor obtain the written opinion of
independent counsel that such transfer would not cause more than an
insubstantial risk that the Trust would not be classified for United States
federal income tax purposes as a grantor trust or that the Trust would be an
Investment Company or the transferee would become an Investment Company. Any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(c) The Republic Trustees shall provide for the registration of Securities
and of transfers of Securities, which will be effected without charge but only
upon payment (with such indemnity as the Republic Trustees may require) in
respect of any tax or other governmental charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Securities, the
Republic Trustees shall cause one or more new Securities to be issued in the
name of the designated transferee. Every Security surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Republic Trustees duly executed by the Holder or such
Holder's attorney duly authorized in writing. Each Security surrendered for
registration of transfer shall be canceled by the Republic Trustees. A
transferee of a Security shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a
Security. By acceptance of a Security, each transferee shall be deemed to have
agreed to be bound by this Declaration.
SECTION 8.2 TRANSFER PROCEDURES AND RESTRICTIONS. If Preferred Securities
are issued upon the transfer, exchange or replacement of Preferred Securities
bearing the Restricted
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Securities Legend set forth in Exhibit A-1 hereto, or if a request is made to
remove such Restricted Securities Legend on Preferred Securities, the
Preferred Securities so issued shall bear the Restricted Securities Legend,
or the Restricted Securities Legend shall not be removed, as the case may be,
unless there is delivered to the Trust such satisfactory evidence, which may
include an opinion of counsel, as may be reasonably required by the Trust,
that neither the legend nor the restrictions on transfer set forth therein
are required under the Purchase Agreements or otherwise to ensure that
transfers thereof comply with the provisions of the Rules under the
Securities Act or, with respect to Restricted Securities, that such
Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon provision of such satisfactory evidence, the Trust
shall authenticate and deliver Preferred Securities that do not bear the
legend.
SECTION 8.2 DEEMED SECURITY HOLDERS. The Trustees may treat the Person in
whose name any Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the Securities represented
by such Certificate for purposes of receiving Distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such Certificate or in the Securities
represented by such Certificate on the part of any Person, whether or not the
Trust shall have actual or other notice thereof.
ARTICLE IX
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 9.1 LIABILITY. (a) Except as expressly set forth in this
Declaration, the Securities Guaranties and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities which
shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holder of
the Common Securities 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; provided, however,
that the Holder of the Common Securities shall be liable for all of the debts
and obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Preferred Securities 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.
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SECTION 9.2 EXCULPATION. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any Covered
Person for any loss, damage or claim incurred by reason of 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 the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 9.3 FIDUCIARY DUTY. (a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity, are agreed by the parties hereto to replace such other
duties and liabilities of the Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act in a manner that
is, or provides terms that are, fair and reasonable to the Trust or any Holder
of Securities, the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors as
it desires, including its own interests, and
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shall have no duty or obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 9.4 INDEMNIFICATION. (a) (i) The Debt Issuer shall indemnify, to
the full extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees and expenses), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Debt Issuer shall indemnify, to the full extent permitted by
law, any Company Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by reason of the fact that
he is or was a Company Indemnified Person against expenses (including attorneys'
fees and expenses) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the Trust and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action without
prejudice or the settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 9.4 (a), or in defense of any claim, issue or matter therein, he
shall be indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this Section
9.4(a) (unless ordered by a court) shall be made by the Debt Issuer only as
authorized in the specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i)
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and (ii). Such determination shall be made (1) by the Republic Trustees by a
majority vote of a quorum consisting of such Republic Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Republic
Trustees so directs, by independent legal counsel in a written opinion, or
(3) by the Common Securities Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses) incurred by a
Company Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i) and (ii)
of this Section 9.4 (a) shall be paid by the Debt Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Company Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Debt
Issuer as authorized in this Section 9.4 (a). Notwithstanding the foregoing, no
advance shall be made by the Debt Issuer if a determination is reasonably and
promptly made (i) by the Republic Trustees by a majority vote of a quorum of
disinterested Republic Trustees, (ii) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Republic Trustees so directs,
by independent legal counsel in a written opinion or (iii) the Common Securities
Holder of the Trust, that, based upon the facts known to the Republic Trustees,
counsel or the Common Securities Holder at the time such determination is made,
such Company Indemnified Person acted in bad faith or in a manner that such
Person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the Republic
Trustees, independent legal counsel or the Common Securities Holder reasonably
determine that such person deliberately breached his duty to the Trust or its
Common or Preferred Securities Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4 (a) shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debt Issuer or Preferred
Securities Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 9.4(a) shall be deemed to be
provided by a contract between the Debt Issuer and each Company Indemnified
Person who serves in such capacity at any time while this Section 9.4(a) is in
effect. Any repeal or modification of this Section 9.4(a) shall not affect any
rights or obligations then existing.
(vii) The Debt Issuer or the Trust may purchase and maintain
insurance on behalf of any Person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Debt Issuer
would have the power to indemnify him against such liability under the
provisions of this Section 9.4(a).
(viii) For purposes of this Section 9.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any Person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in
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the same position under the provisions of this Section 9.4 (a) with respect
to the resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 9.4(a) shall, unless otherwise provided when
authorized or ratified, continue as to a Person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a Person.
(b) The Debt Issuer agrees to indemnify the (i) the Delaware Trustee,
(ii) any Affiliate of the Delaware Trustee, and (iii) any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each Fiduciary Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense including taxes (other than taxes based on the income
of such Fiduciary Indemnified Person) incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration or the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 9.4(b) shall survive the satisfaction and
discharge of this Declaration.
SECTION 9.5 OUTSIDE BUSINESSES. Any Covered Person, the Sponsor, and the
Delaware Trustee 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
Securities shall have no rights by virtue of this Declaration 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. No Covered Person, the Sponsor, or the
Delaware 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 any Covered Person,
the Sponsor, and the Delaware 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 Covered Person or the
Delaware Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Sponsor or its Affiliates.
ARTICLE X
ACCOUNTING
SECTION 10.1 FISCAL YEAR. The fiscal year ("Fiscal Year") of the Trust
shall be the calendar year, or such other year as is required by the Code.
SECTION 10.2 CERTAIN ACCOUNTING MATTERS. (a) At all times during the
existence of the Trust, the Republic Trustees shall keep, or cause to be kept,
full books of account, records and supporting documents, which shall reflect in
reasonable detail each transaction of the Trust. The
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books of account shall be maintained on the accrual method of accounting, in
accordance with generally accepted accounting principles, consistently
applied. The books of account and the records of the Trust shall be examined
by and reported upon as of the end of each Fiscal Year of the Trust by a firm
of independent certified public accountants selected by the Republic Trustees.
(b) The Republic Trustees shall cause to be prepared and delivered to each
of the Holders of Securities, within 90 days after the end of each Fiscal Year
of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss.
(c) The Republic Trustees shall cause to be duly prepared and delivered to
each of the Holders of Securities any annual United States federal income tax
information statement required by the Code, containing such information with
regard to the Securities held by each holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Republic Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust.
(d) The Republic Trustees shall cause to be duly prepared and filed an
annual United States federal income tax return on a Form 1041 or such other form
required by United States federal income tax law, and any other annual income
tax returns required to be filed by the Republic Trustees on behalf of the Trust
with any state or local taxing authority.
SECTION 10.3 BANKING. The Trust shall maintain one or more bank accounts
in the name and for the sole benefit of the Trust. The sole signatories for
such accounts shall be designated by the Republic Trustees.
SECTION 10.4 WITHHOLDING. The Trust and the Republic Trustees shall comply
with all withholding requirements under United States federal, state and local
law. The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Republic
Trustees shall file required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to distributions or allocations to any Holder, the amount
withheld shall be deemed to be a Distribution in the amount of the withholding
to the Holder. In the event of any claimed over withholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount
required to be withheld was not withheld from actual Distributions made, the
Trust may reduce subsequent Distributions by the amount of such withholding.
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ARTICLE XI
AMENDMENTS AND MEETINGS
SECTION 11.1 AMENDMENTS. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Securities, this Declaration may
only be amended by a written instrument approved and executed by
(i) the Republic Trustees (or, if there are more than two Republic
Trustees, a majority of the Republic Trustees); and
(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, the Delaware Trustee.
(b) Notwithstanding any other provision of this Article XI, no amendment
shall be made, and any such purported amendment shall be void and ineffective to
the extent the result of such amendment would be to:
(i) cause the trust to fail to continue to be classified for purposes
of United States federal income taxation as a grantor trust; or
(ii) cause the Trust to be deemed to be an Investment Company required
to be registered under the Investment Company Act.
(c) At such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected only with such
additional requirements as may be set forth in the terms of such Securities.
(d) Section 7.1(b) and this Section 11.1 shall not be amended without the
consent of all of the Holders of the Securities.
(e) Article III shall not be amended without the consent of the Holders of
a majority in liquidation amount of the Common Securities.
(f) The rights of the Holders of the Common Securities under Article IV to
increase or decrease the number of, and appoint and remove, Trustees shall not
be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities.
(g) Notwithstanding Section 11.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
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(iv) modify, eliminate and add to any provision of this Declaration to
such extent as may be necessary; provided, however, that no such amendment shall
adversely affect the powers, preferences or special rights of Holders of
Securities.
SECTION 11.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
CONSENT. (a) Meetings of the Holders of any class of Securities may be called at
any time by the Republic Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration or the terms
of the Securities. The Republic Trustees shall call a meeting of the Holders of
such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Republic Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Securities exercising the right to call a meeting and only those
Securities represented by such Certificates shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days and not
more than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration, such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of the Holders
of Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of Securities owning not less
than the minimum amount of Securities in liquidation amount that would be
necessary to authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the Holders
of Securities entitled to vote who have not consented in writing. The Republic
Trustees may specify that any written ballot submitted to the Securities Holder
for the purpose of taking any action without a meeting shall be returned to the
Trust within the time specified by the Republic Trustees;
(ii) each Holder of a Security may authorize any Person to act for it
by proxy on all matters in which a Holder of Securities is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. No proxy shall be valid after the expiration of 11 months from
the date thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations thereunder,
as if the Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation; each meeting of the Holders of the
Securities shall be conducted by the Republic Trustees or by such other Person
that the Republic Trustees may designate; and
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(iii) unless the Business Trust Act, this Declaration, or the
terms of the Securities otherwise provides, the Republic Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of Holders
of Securities, including notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Holders of Securities, waiver of any
such notice, action by consent without a meeting, the establishment of a record
date, quorum requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XII
REPRESENTATIONS OF DELAWARE TRUSTEE
SECTION 12.1 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE. The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee, that:
(a) The Delaware Trustee is duly organized, validly existing and in good
standing under the laws of the State of Delaware, with trust power and authority
to execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration.
(b) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Declaration. This Declaration under
Delaware law constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and other similar
laws affecting creditors' rights generally and to general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any federal banking authority is required for the execution, delivery
or performance by the Delaware Trustee of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES. All notices provided for in this Declaration shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Republic Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities:
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Republic Capital Trust
601 West Market Street
Louisville, Kentucky 40202
Attention: Steven E. Trager
Telecopy: 502/561-7188
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
Wilmington Trust Company
Rodney Square North
1100 N. Market Street
Wilmington, Delaware 19890-0001
Attention: Emmett R. Harmon
Telecopy: 302-651-1576
(c) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Trust):
Republic Bancorp, Inc.
601 West Market Street
Louisville, Kentucky 40202
Attention: Steven E. Trager
(d) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, 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 13.2 GOVERNING LAW. This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to the principles of conflict of laws of the State of Delaware or
any other jurisdiction that would call for the application of the law of any
jurisdiction other than the State of Delaware; provided, however, that there
shall not be applicable to the Trust, the Trustees or this Declaration any
provision of the laws (statutory or common) of the State of Delaware pertaining
to trusts that relate to or regulate, in a manner inconsistent with the terms
hereof (a) the filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges, (b) affirmative requirements
to post bonds for trustees, officers, agents or employees of a trust, (c) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (d) fees or
other sums payable to trustees, officers, agents or employees of a trust, (e)
the allocation of receipts and expenditures to income or principal, (f)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements
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relating to the titling, storage or other manner of holding or investing
trust assets or (g) the establishment of fiduciary or other standards of
responsibility or limitations on the acts or powers of trustees that are
inconsistent with the limitations or liabilities or authorities and powers of
the Trustees as set forth or referenced in this Declaration. Section 3540 of
Title 12 of the Delaware Code shall not apply to the Trust.
SECTION 13.3 INTENTION OF THE PARTIES. It is the intention of the parties
hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 13.4 HEADINGS. Headings contained in this Declaration are inserted
for convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 13.5 SUCCESSORS AND ASSIGNS. Whenever in this Declaration any of
the parties hereto is named or referred to, the successors and assigns of such
party shall be deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Trustees shall bind and inure to the benefit
of their respective successors and assigns, whether or not so expressed.
SECTION 13.6 PARTIAL ENFORCEABILITY. If any provision of this Declaration,
or the application of such provision to any Person or circumstance, shall be
held invalid, the remainder of this Declaration, or the application of such
provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 13.7 COUNTERPARTS. This Declaration may contain more than one
counterpart of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to any of such counterpart
signature pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
/S/ STEVEN E. TRAGER
---------------------------------------
Steven E. Trager, as Republic
Trustee and Property Trustee
/S/ L. LEE KINSOLVING, JR.
---------------------------------------
L. Lee Kinsolving, Jr., as Republic
Trustee
/S/ A. SCOTT TRAGER
---------------------------------------
A. Scott Trager, as Republic
Trustee
WILMINGTON TRUST COMPANY
as Delaware Trustee
By: /S/ PATRICIA A. EVANS
----------------------------------
Name: Patricia A. Evans
Title: Financial Services
REPUBLIC BANCORP, INC.
as Sponsor
By: /S/ STEVEN E. TRAGER
----------------------------------
Name: Steven E. Trager
Title: President
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ANNEX I
TERMS OF QUARTERLY INCOME PREFERRED SECURITIES
Pursuant to Section 6.1 of the Declaration of Trust, dated as of
February 5, 1997 (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities and the Common Securities are set
out below (each capitalized term used but not defined herein has the meaning
set forth in the Declaration):
1. DESIGNATION AND NUMBER. (a) Preferred Securities. Quarterly Income
Preferred Securities of the Trust, with an aggregate stated liquidation amount
with respect to the assets of the Trust of Nine Million Seven Hundred Thousand
Dollars ($9,700,000) and a stated liquidation amount with respect to the assets
of the Trust of $100 per Preferred Security, are hereby designated for the
purposes of identification only as "Quarterly Income Preferred Securities" (the
"Preferred Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form of Exhibit A-I to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice.
(b) Common Securities. Common Securities of the Trust, with an aggregate
stated liquidation amount with respect to the assets of the Trust of Three
Hundred Thousand Dollars ($300,000) and a stated liquidation amount with respect
to the assets of the Trust of $100 per Common Security, are hereby designated
for the purposes of identification only as "Common Securities" (the "Common
Securities"). The Common Security Certificates evidencing the Common Securities
shall be substantially in the form of Exhibit A-2 to the Declaration, with such
changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
2. DISTRIBUTIONS. (a) Distributions payable on each Security will be
fixed at a rate per annum of 8.5% (the "Coupon Rate") of the stated liquidation
amount of $100 per Security, such rate being the rate of interest payable on the
Debt to be held by the Trust. Except as set forth below in respect of an
Extension Period, Distributions in arrears for more than one quarterly period
will bear interest thereon compounded quarterly at the Coupon Rate (to the
extent permitted by applicable law). The term "Distributions" as used herein
includes cash distributions and any such compounded distributions plus any
Additional Interest paid on the Debt unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debt held by
the Trust and to the extent the Trust has funds available therefor. The amount
of Distributions payable for any period will be computed for any full quarterly
period on the basis of a 360-day year of twelve 30-day months.
(b) Distributions on the Securities will be cumulative, will accrue from
the date of issuance, and will be payable quarterly in arrears on January 1,
April 1, July 1, and October 1 of each year, commencing on April 1, 1997, except
as otherwise described below. The Debt Issuer has the right under the Indenture
to defer payments of interest by extending the interest payment period at any
time and from time to time on the Debt for a period not exceeding 20 consecutive
quarterly periods (each an "Extension Period"), during which Extension Period no
interest shall be due and payable on the Debt, PROVIDED, that no Extension
Period shall be initiated while accrued
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interest with respect to prior, completed Extension Periods is unpaid, or
extend beyond the maturity of the Debt; and, PROVIDED, further, that no
Extension Period shall extend beyond the date of maturity of the Debt. In
the event that the Debt Issuer exercises this right, then during any
Extension Period (a) the Debt Issuer shall not declare or pay dividends on,
make a distribution with respect to, or redeem, purchase or acquire, or make
a liquidation payment with respect to, any of its capital stock or rights to
acquire such capital stock (other than (i) purchases or acquisitions of
shares of any such capital stock or rights to acquire such capital stock in
connection with the satisfaction by the Debt Issuer of its obligations under
any employee benefit plans, (ii) as a result of a reclassification of the
Debt Issuer's capital stock or rights to acquire such capital stock or the
exchange or conversion of one class or series of the Debt Issuer's capital
stock or rights to acquire such capital stock for another class or series of
the Debt Issuer's capital stock or rights to acquire such capital stock,
(iii) the purchase of fractional interests in shares of the Debt Issuer's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged or (iv) dividends
and distributions made on the Debt Issuer's capital stock or rights to
acquire such capital stock with the Debt Issuer's capital stock or rights to
acquire such capital stock), (b) the Debt Issuer shall not make any payment
of interest, principal or premium, if any, on or repay, repurchase or redeem
any debt securities issued by the Debt Issuer that rank pari passu with or
junior to such Debt and (c) the Debt Issuer shall not make any guarantee
payments with respect to the foregoing (other than pursuant to the Securities
Guaranties). Prior to the termination of any such Extension Period in
respect of the Debt, the Debt Issuer may further extend the interest payment
period; provided that each such Extension Period in respect of the Debt,
together with all such previous and further extensions thereof, may not
exceed 20 consecutive quarterly periods or extend beyond the maturity of the
Debt. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debt Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders thereof
as they appear on the books and records of the Trust on the relevant record
dates. The relevant record dates for the Securities shall be 15 Business Days
prior to the relevant payment date. Distributions payable on any Securities
that are not punctually paid on any Distribution payment date, as a result of
the Debt Issuer having failed to make a payment under the Debt, as the case may
be, when due (taking into account any Extension Period), will cease to be
payable to the Person in whose name such Securities are registered on the
relevant record date, and such a Distribution will instead be payable to the
Person in whose name such Securities are registered on the special record date
or other specified date determined in accordance with the Indenture. If any
date on which Distributions are payable on the Securities is not a Business Day,
then payment of the Distribution 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 is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(d) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. In the event of any
voluntary or involuntary dissolution of the Trust, the Holders of the Securities
on the date of the dissolution will be entitled to receive out of the assets of
the Trust available for distribution to Holders of Securities
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after paying or making reasonable provision to pay all claims and obligations
of the Trust in accordance with Section 3808(e) of the Business Trust Act an
amount equal to the aggregate of the stated liquidation amount of $100 per
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"), unless such dissolution
occurs in connection with a Dissolution Event or a Tax Event in which, in
accordance with Section 4(c), Debt in an aggregate stated principal amount
equal to the aggregate stated liquidation amount of such Securities, with an
interest rate equal to the Coupon Rate of, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid Distributions on, such
Securities, shall, after paying or making reasonable provision to pay all
claims and obligations of the Trust in accordance with Section 3808(e) of the
Business Trust Act, be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
If, upon any such dissolution, 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 the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis, except that if an
Event of Default has occurred and is continuing, the Preferred Securities shall
have a preference over the Common Securities with regard to such amounts.
4. REDEMPTION AND DISTRIBUTION. (a) The Debt is not redeemable prior to
April 1, 2002, except that the Debt Issuer has the right, at its option, to
redeem the Debt in certain circumstances upon the occurrence of a Tax Event or
Dissolution Event (as described below). Upon the repayment of the Debt in whole
or in part, whether at maturity or upon redemption, the Trust shall apply the
proceeds from such repayment or payment to simultaneously redeem Securities
having an aggregate liquidation amount equal to the aggregate principal amount
of the Debt so repaid or redeemed, at a redemption price of $100 per Security
plus an amount equal to accrued and unpaid Distributions thereon at the date of
the redemption.
(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Preferred Securities will be redeemed Pro Rata.
(c) If the Holders of all the Common Securities consent to the dissolution
of the Trust as a result of a Dissolution Event or a Tax Event (as defined
below), the Republic Trustees shall, except in certain limited circumstances
described in this Section 4(c), and, after paying or making reasonable provision
to pay all claims and obligations of the Trust in accordance with Section
3808(e) of the Business Trust Act, cause Debt held by the Trust, having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid Distributions on, and having the same
record date for payment as the Securities, to be distributed to the Holders of
the Securities in liquidation of such Holders' interests in the Trust on a Pro
Rata basis; PROVIDED, however, that, as a condition of such dissolution and
distribution, the Republic Trustees shall have received an opinion of
independent tax counsel experienced in such matters (a "No Recognition
Opinion"), which opinion may rely on published revenue rulings of the Internal
Revenue Service, to the effect that the Holders of the Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of the dissolution of the Trust and the distribution of Debt, and
PROVIDED, further, that, if there is available to the Sponsor the opportunity to
eliminate, within a reasonable time, the adverse effects of the Tax Event by
taking some ministerial action, such as filing a form or making an election, or
pursuing some other similar reasonable measure that has
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no adverse effect on the Trust, the Debt Issuer, the Sponsor or the Holders
of the Securities ("Ministerial Action"), the Trust will pursue such
Ministerial Action in lieu of dissolution.
If, at any time, a Tax Event or a Dissolution Event shall occur and be
continuing, the Debt Issuer shall have the right at any time, upon not less than
10 nor more than 60 days notice, to redeem the Debt in whole or in part for cash
so long as such event is continuing, and, following such redemption, Securities
with an aggregate liquidation amount equal to the aggregate principal amount of
the Debt so redeemed shall be redeemed by the Trust at the Redemption Price on a
Pro Rata basis; PROVIDED, HOWEVER, that, in the case of a Tax Event, if there is
available to the Debt Issuer or the Trust the opportunity to eliminate, within a
reasonable time, the adverse effects of the Tax Event by taking some Ministerial
Action, the Trust or the Debt Issuer will pursue such Ministerial Action in lieu
of redemption.
A "Dissolution Event" shall occur upon the occurrence, and during the
continuation, of either of the following events: (i) the Republic Trustees shall
have received an opinion of independent counsel experienced in practice under
the federal securities laws that there is more than an insubstantial risk that
the Trust is or will be considered an Investment Company; or (ii) the Board of
Governors of the Federal Reserve System or a Federal Reserve Bank (the "Federal
Reserve") shall have advised the Debt Issuer that the Preferred Securities are
not or will be considered not to be "Tier 1 capital" of the Debt Issuer under
the regulations, policies and guidelines of the Federal Reserve.
"Tax Event" means that the Republic Trustees shall have received an opinion
of independent tax counsel experienced in such matters (a "Dissolution Tax
Opinion") to the effect that, as a result of (a) any amendment to, clarification
of 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, (b) any judicial decision, official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action"), or (c) any amendment to,
clarification of, or change in the official position or the interpretation of
such Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case, by any legislative body,
court, governmental authority or regulatory body, irrespective of the manner in
which such amendment, clarification or change is made known, which amendment,
clarification, or change is effective or such Administrative Action or decision
is announced, in each case, on or after the first date of the Private Placement
Memorandum, there is more than an insubstantial risk that (i) the Trust is, or
will be within 90 days of the date thereof, subject to United States federal
income tax with respect to interest accrued or received on the Debt or subject
to more than a de minimis amount of other taxes, duties or other governmental
changes, (ii) any portion of interest payable by the Debt Issuer to the Trust on
the Debt is not, or within 90 days of the date thereof will not be, deductible
by the Debt Issuer for United States federal income tax purposes or (iii) the
Debt Issuer could become liable to pay, on the next date on which any amount
would be payable with respect to the Debt, any Additional Interest (as defined
in the Indenture).
After the date for any distribution of Debt upon dissolution of the Trust:
(i) the Securities will be deemed to be no longer outstanding, (ii) the Holders
of the Preferred Securities will receive a certificate or certificates
representing the Debt to be delivered upon such distribution and (iii) any
Certificates representing Preferred Securities will be deemed to represent
undivided beneficial
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interests in such of the Debt having an aggregate principal amount equal to
the aggregate stated liquidation amount of, with an interest rate identical
to the Coupon Rate of, and accrued and unpaid interest equal to accrued and
unpaid Distributions on, such Preferred Securities until such Certificates
are presented to the Debt Issuer or its agent for conversion, transfer or
reissue.
(d) The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accrued and unpaid Distributions have been paid on all
Preferred Securities for all quarterly Distribution periods terminating on or
before the date of redemption.
(e) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of distribution of Debt in
exchange for, the Securities (a "Redemption/Distribution Notice") will be given
by the Trust by mail to each Holder of Securities to be redeemed or exchanged
not fewer than 10 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debt. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 4(e)(i), a Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail, postage prepaid, to
Holders of such Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of such Securities at the address of each such Holder
appearing on the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing thereof with respect to any
Holder shall affect the validity of the redemption or exchange proceedings with
respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities are
to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata from
each Holder of Securities.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/ Distribution Notice, which notice may only be issued if the Debt is
redeemed as set out in this Section 4 (which notice will be irrevocable), then
with respect to Preferred Securities and Common Securities, provided that the
Debt Issuer has paid the Trust a sufficient amount of cash in connection with
the related redemption or maturity of the Debt, the Trust will pay the relevant
Redemption Price to the Holders of such Securities by check mailed to the
address of each such Holder appearing on the books and records of the Trust on
the redemption date. If a Redemption/Distribution Notice shall have been given
and funds deposited as required, then immediately prior to the close of business
on the date of such deposit, Distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders of such Securities
so called for redemption will cease, except the right of the Holders of such
Securities to receive the applicable redemption price specified in Section 4(a),
but without interest on such redemption price. If any date fixed for redemption
of Securities is not a Business Day, then payment of any such 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 fixed for redemption. If payment
of the Redemption Price in respect of any Securities is improperly withheld or
refused and not paid either by the Trust or by the Sponsor as guarantor pursuant
to the relevant Securities Guaranty, Distributions on such Securities will
continue to accrue from the
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original redemption date to the actual date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price. In the event of any redemption
of Preferred Securities issued by the Trust in part, the Trust shall not be
required to (i) issue, register the transfer of or exchange any Certificates
for Securities during a period beginning at the opening of business 15 days
before any selection for redemption of Preferred Securities and ending at the
close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all holders of Preferred
Securities to be so redeemed or (ii) register the transfer of or exchange any
Certificates for Securities so selected for redemption, in whole or in part,
except for the unredeemed portion of any Securities being redeemed in part,
except in connection with any conversion of Securities in accordance with
their terms.
(iv) Redemption/Distribution Notices shall be sent by the Republic
Trustees on behalf of the Trust to the Holders thereof.
5. VOTING RIGHTS - Preferred Securities. (a) Except as provided under
Section 7 and as otherwise required by law and the Declaration, the Holders of
the Preferred Securities will have no voting rights. The Republic Trustee is
required to call a meeting of the holders of the Preferred Securities if
directed to do so by holders of at least 10% in aggregate liquidation amount
thereof.
(b) No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debt in accordance with the Declaration and the terms of the
Securities.
6. VOTING RIGHTS - COMMON SECURITIES. (a) Except as provided under
Sections 6(b) and 7 and as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article IV of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees and are entitled, in
accordance with Article VII of the Declaration, to consent to the dissolution of
the Trust under certain conditions.
7. AMENDMENTS TO DECLARATION AND INDENTURE. (a) In addition to any
requirements under Section 11.1 of the Declaration, if any proposed amendment to
the Declaration provides for, or the Republic Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers, preferences or
special rights of the Securities, whether by way of amendment to the Declaration
or otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than as described in Section 7.1 of the Declaration, then the Holders of
outstanding Securities, voting together as a single 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 Securities, affected thereby; provided, however, if
any amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or only the Common Securities, then only the
affected 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 a
Majority in liquidation amount of such class of Securities.
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(b) Notwithstanding the foregoing, no amendment or modification may be
made to the Declaration if such amendment or modification would (i) cause the
Trust to be classified for purposes of United States federal income taxation as
other than a grantor trust, or (ii) cause the Trust to be deemed an "investment
company" which is required to be registered under the Investment Company Act.
8. PRO RATA. A reference in these terms of the Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean pro rata to
each Holder of Securities according to the aggregate liquidation amount of the
Securities held by the relevant Holder in relation to the aggregate liquidation
amount of all Securities outstanding unless, in relation to a payment, an Event
of Default has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Preferred Securities
pro rata according to the aggregate liquidation amount of Preferred Securities
held by the relevant Holder relative to the aggregate liquidation amount of all
Preferred Securities outstanding, and only after satisfaction of all amounts
owed to the Holders of the Preferred Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
9. RANKING. The Preferred Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities except that, where an Event of
Default has occurred and is continuing, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
10. ACCEPTANCE OF SECURITIES GUARANTY AND INDENTURE. Each Holder of
Preferred Securities and Common Securities, by the acceptance of such
Securities, agrees to the provisions of the Preferred Securities Guaranty and
the Common Securities Guaranty, respectively, including the subordination
provisions therein and to the provisions of the Indenture.
11. NO PREEMPTIVE RIGHTS. The Holders of the Securities shall have no
preemptive rights to subscribe for any additional securities.
12. CONVERSION RIGHTS. The Holders of Securities shall have the right at
any time prior to 5:00 p.m. (Louisville, Kentucky time) on the Business Day
immediately preceding the date of repayment of such Securities, whether at
maturity or upon redemption, to cause the Conversion Agent to convert
Securities, on behalf of the converting Holders, into shares of Republic Common
Stock in the manner described herein on and subject to the following terms and
conditions:
(a) The Securities will be convertible at the office of the
Conversion Agent into fully paid and nonassessable shares of Republic Common
Stock pursuant to the Holder's direction to the Conversion Agent to exchange
such Securities for a portion of the Debt theretofore held by the Trust on the
basis of one Security per $100 principal amount of Debt, and immediately convert
such amount of Debt into fully paid and nonassessable shares of Republic Common
Stock at an initial conversion rate of 5 shares of Republic Common Stock per
$100 principal amount of Debt (which is equivalent to a conversion price of $20
per share of Republic Common Stock, subject to certain adjustments set forth in
the terms of the Debt (as so adjusted, the "Conversion Price")).
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(b) To convert Securities into Republic Common Stock, the Holder
shall submit to the Conversion Agent at the office of the Sponsor an irrevocable
request to convert Securities on behalf of such Holder (the "Conversion
Request"), together with the Certificates for such Securities. The Conversion
Request shall (i) set forth the number of Securities to be converted and the
name or names, if other than the Holder, in which the shares of Republic Common
Stock should be issued and (ii) direct the Conversion Agent (A) to exchange such
Securities for a portion of the Debt held by the Trust (at the rate of exchange
specified in the preceding paragraph) and (B) to immediately convert such Debt
on behalf of such Holder, into Republic Common Stock (at the conversion rate
specified in the preceding paragraph). The Conversion Agent shall notify the
Trust of the Holder's election to exchange Securities for a portion of the Debt
held by the Trust and the Trust shall, upon receipt of such notice, deliver to
the Conversion Agent the appropriate principal amount of Debt for exchange in
accordance with this paragraph 12. The Conversion Agent shall thereupon notify
the Debt Issuer of the Holder's election to convert such Debt into shares of
Republic Common Stock. Accrued Distributions will not be paid on Securities that
are converted, nor will any payment, allowance or adjustment be made for
accumulated and unpaid Distributions, whether or not in arrears, accrued on
converted Securities (including any Additional Interest or Compounded Interest
accrued thereon) except that (i) Holders of Securities at the close of business
on a record date will be entitled to receive the Distributions payable on such
Securities on the corresponding payment date notwithstanding the conversion of
such Securities following such record date but prior to such payment date and
(ii) if, during an Extension Period, notice of any redemption of Securities is
mailed or otherwise given to Holders of Securities, then, if any Holder of
Securities converts any Securities into Republic Common Stock on any date on or
after the date on which such notice of redemption is mailed or otherwise given,
and such date of conversion falls on any day from and including the first day of
an Extension Period through and including the record date for the payment of the
Distributions on the Securities which have been deferred as a result of such
Extension Period, such holder shall be entitled to receive all accrued and
unpaid Distributions on such Securities to the most recent payment date prior to
the date of such conversion, whether or not such payment date falls in such
Extension Period (or, if the date of such conversion is (A) during an Extension
Period, (B) on or prior to the payment date upon which such Extension Period
ends and (C) after the record date for the payment date referred to in clause
(B) above, all accrued and unpaid Distributions on such Securities to such
payment date) shall be distributed to the Holder who converts such Securities,
which distribution shall be made on the redemption date fixed for redemption.
Except as provided above, neither the Trust nor the Debt Issuer will make, or be
required to make, any payment, allowance or adjustment upon any conversion on
account of any accumulated and unpaid Distributions on the Securities (including
any Additional Interest or Compounded Interest) surrendered for conversion. The
Debt Issuer shall make no payment or allowance for distributions on the shares
of Republic Common Stock issued upon such conversion, except to the extent that
such shares of Republic Common Stock are held of record on the record date for
any such distributions. Securities shall be deemed to have been converted
immediately prior to 5:00 p.m. (Louisville, Kentucky time) on the day on which a
Conversion Request relating to such Securities is received by the Trust in
accordance with the foregoing provision (the "Conversion Date"). The Person or
Persons entitled to receive Republic Common Stock issuable upon conversion of
the Debt shall be treated for all purposes as the record holder or holders of
such Republic Common Stock at such time. As promptly as practicable on or after
the Conversion Date, the Debt Issuer shall issue and deliver at the office of
the Conversion Agent a certificate or certificates for the number of full shares
of Republic Common Stock issuable upon such conversion, together with the cash
payment, if any, in lieu of any fraction of any share to the Person or Persons
entitled to receive the same, unless otherwise directed by
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the Holder in the notice of conversion and the Conversion Agent shall
distribute such certificate or certificates to such Person or Persons.
(c) Each Holder of a Security by his acceptance thereof appoints
Steven E. Trager (the "Conversion Agent") as the agent of the holder for the
purpose of effecting the conversion of Securities in accordance with this
paragraph 12. If Steven E. Trager resigns or otherwise fails to serve as
Conversion Agent, then the Property Trustee shall serve as Conversion Agent. In
effecting the conversion and transactions described in this paragraph 12, the
Conversion Agent shall be acting as agent of the Holders of Securities directing
it to effect such conversion transactions. The Conversion Agent is hereby
authorized (i) to exchange Securities from time to time for Debt held by the
Trust in connection with the conversion of such Securities in accordance with
this paragraph 12 and (ii) to convert all or a portion of the Debt into Republic
Common Stock and thereupon to deliver such shares of Republic Common Stock in
accordance with the provisions of this paragraph 12 and to deliver to the Trust
a new Debt Security for any resulting unconverted principal amount.
(d) No fractional shares of Republic Common Stock will be issued
as a result of conversion, but in lieu thereof, such fractional interest will be
paid in cash (based on the last reported sale price of Republic Common Stock on
the Conversion Date (or, if such date is not a trading date, on the next trading
date) if Republic Common Stock is then traded on a national securities exchange
or is subject to quotation on an inter-dealer automated quotation system, or
otherwise based on the Conversion Price) by the Debt Issuer to the Trust, which
in turn will make such payment to the Holder or Holders of Securities so
converted.
(e) The Debt Issuer shall at all times reserve and keep available
out of its authorized and unissued Republic Common Stock, solely for issuance
upon the conversion of the Debt, free from any preemptive or other similar
rights, such number of shares of Republic Common Stock as shall from time to
time be issuable upon the conversion of all the Debt then outstanding.
Notwithstanding the foregoing, the Debt Issuer shall be entitled to deliver upon
conversion of Debt, shares of Republic Common Stock reacquired and held in the
treasury of the Debt Issuer (in lieu of the issuance of authorized and unissued
shares of Republic Common Stock), so long as any such treasury shares are free
and clear of all liens, charges, security interests or encumbrances. Any shares
of Republic Common Stock issued upon conversion of the Debt shall be duly
authorized, validly issued, fully paid and nonassessable. The Conversion Agent
shall deliver the shares of Republic Common Stock received upon conversion of
the Debt to the converting Holder free and clear of all liens, charges, security
interests and encumbrances, except for United States withholding taxes.
(f) The Debt Issuer will pay any and all taxes that may be payable
in respect of the issue or delivery of shares of Republic Common Stock on
conversion of Debt and the delivery of shares of Republic Common Stock by the
Trust upon conversion of the Securities. The Debt Issuer shall not, however, be
required to pay any tax that may be payable in respect of any transfer involved
in the issue and delivery of shares of Republic Common Stock in a name other
than that in which the Securities so converted were registered, and no such
issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Trust the amount of any such tax or has established to the
satisfaction of the Trust that such tax has been paid.
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(g) Nothing in the preceding paragraph 12 shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the
Securities or as set forth in this Annex I to the Declaration or the Declaration
itself or otherwise require the Trustees or the Trust to pay any amounts on
account of such withholdings.
13. MISCELLANEOUS. These terms constitute a part of the Declaration. The
Sponsor will provide a copy of the Declaration, the Preferred Securities
Guaranty or the Common Securities Guaranty (as may be appropriate), and the
Indenture to a Holder without charge on written request to the Sponsor at its
principal place of business.
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EXHIBIT A-1
FORM OF INITIAL PREFERRED SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include the following Restricted Securities Legend on all Preferred
Securities, unless otherwise determined by the Sponsor in accordance with
applicable law ---- [The securities represented by this certificate have not
been registered under the Securities Act of 1933, as amended, or the securities
laws of any state (the "Securities Laws"). These securities may not be offered,
sold, transferred, pledged or hypothecated in the absence of registration under
applicable Securities Laws, or the availability of an exemption therefrom. This
certificate will not be transferred on the books of the Corporation or any
transfer agent acting on behalf of the Corporation except upon the receipt of an
opinion of counsel, satisfactory to the Corporation, that the proposed transfer
is exempt from the registration requirements of all applicable Securities Laws,
or the receipt of evidence, satisfactory to the Corporation, that the proposed
transfer is the subject of an effective registration statement under all
applicable Securities Laws.]
Certificate Number Number of Preferred Securities
Certificate Evidencing Preferred Securities
of
REPUBLIC CAPITAL TRUST
Quarterly Income Preferred Securities
(Liquidation amount $100 per Preferred Security)
REPUBLIC CAPITAL 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 undivided beneficial interests in the assets of the
Trust, designated the Quarterly Income Preferred Securities (liquidation amount
$100 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. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued pursuant to, and shall in all respects
be subject to, the provisions of the Declaration of Trust of the Trust dated as
of February 5, 1997, including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration, as the same may be
amended from time to time (the "Declaration"). Capitalized terms used herein
but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guaranty to the
extent provided therein, the terms of which are incorporated by reference
herein. The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guaranty and the Indenture to the Holder without charge upon written
request to the Trust at its principal place of business.
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Upon receipt of this Security, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat, for United
States federal income tax purposes, the Debt as indebtedness and the Preferred
Securities as evidence of beneficial ownership in the Debt.
IN WITNESS WHEREOF, the Trust has executed this certificate this ____
day of __________, 1997.
REPUBLIC CAPITAL TRUST
GUARANTEED to the extent provided By: _________________________
in the Preferred Securities Guaranty, Name: Steven E. Trager
incorporated herein by reference: Title: Republic Trustee
REPUBLIC BANCORP, INC.
By:________________________________
Title:_____________________________
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a
rate per annum of 8.5% (the "Coupon Rate") of the stated liquidation amount of
$100 per Preferred Security, such rate being the rate of interest payable on the
Debt to be held by the Trust. Except as set forth below in respect of an
Extension Period, Distributions in arrears for more than a quarterly period will
bear interest thereon compounded quarterly at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
cash distributions and any such compounded interest and any Additional Interest
paid on the Debt unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debt held by the Trust and to
the extent the Trust has funds available therefor. The amount of Distributions
payable for any period will be computed for any full quarterly Distribution
period on the basis of a 360-day year of twelve 30-day months.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears on January 1, April 1, July 1 and
October 1 of each year, commencing on April 1, 1997. The Debt Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debt for a
period not exceeding 20 consecutive quarterly periods (each an "Extension
Period"), during which Extension Period no interest will be due and payable on
the Debt, PROVIDED, that no Extension Period shall be initiated while accrued
interest with respect to prior, completed Extension Periods is unpaid or extend
beyond the date of the maturity of the Debt. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debt Issuer may further extend such Extension Period; PROVIDED, THAT such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarterly periods or extend beyond the maturity of
the Debt. Distributions accrued during any Extension Period will be payable on
the next quarterly Distribution payment date to Holders as they appear on the
books and records of the Trust on the record date next following the termination
of the Extension Period. Upon the termination of any Extension Period and the
payment of all amounts then due, the Debt Issuer may commence a new Extension
Period, subject to the above requirements.
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The Preferred Securities shall be redeemable and, through the Debt,
may be converted into Class A Common Stock of the Debt Issuer as provided in the
Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate 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)
Signature Guaranty:*__________
*Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Security registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
CONVERSION REQUEST
To: Steven E. Trager, as Conversion Agent
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into Class A Common Stock of Republic Bancorp, Inc.
(the "Common Stock") in accordance with the terms of the Declaration of Trust
(the "Declaration"), dated as of February 5, 1997 by Steven E. Trager, A. Scott
Trager, and L. Lee Kinsolving, Jr., as Republic Trustees, Wilmington Trust
Company, as Delaware Trustee, and Republic Bancorp, Inc. as Sponsor. Pursuant
to the aforementioned exercise of the option to convert these Preferred
Securities, the
41
<PAGE>
undersigned hereby directs the Conversion Agent (as that term is defined in
the Declaration) to (i) exchange such Preferred Securities for a portion of
the Debt (as that term is defined in the Declaration) held by the Trust (at
the rate of exchange specified in the terms of the Preferred Securities set
forth as Annex I to the Declaration) and (ii) immediately convert such Debt
on behalf of the undersigned, into Common Stock (at the conversion rate
specified in the terms of the Preferred Securities set forth as Annex I to
the Declaration).
The undersigned also hereby directs the Conversion Agent that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: ________________
Number of Preferred Securities to be converted: ___________________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
__________________________________________
(Sign exactly as your name appears on the other side of this Preferred
Security Certificate) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
__________________________________________
__________________________________________
__________________________________________
__________________________________________
Signature Guaranty:* _______________________________
*Signature must be guaranteed by an "eligible guarantor institution" that is, a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents 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.
42
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
[The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the securities laws
of any state (the "Securities Laws"). These securities may not be offered,
sold, transferred, pledged or hypothecated in the absence of registration under
applicable Securities Laws, or the availability of an exemption therefrom. This
certificate will not be transferred on the books of the Corporation or any
transfer agent acting on behalf of the Corporation except upon the receipt of an
opinion of counsel, satisfactory to the Corporation, that the proposed transfer
is exempt from the registration requirements of all applicable Securities Laws,
or the receipt of evidence, satisfactory to the Corporation, that the proposed
transfer is the subject of an effective registration statement under all
applicable Securities Laws.]
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
Of
REPUBLIC CAPITAL TRUST
REPUBLIC CAPITAL TRUST, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Republic
Bancorp, Inc. (the "Holder") is the registered owner of common securities of the
Trust representing undivided beneficial interests in the assets of the Trust
(the "Common Securities"). The Common 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.
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities represented hereby are issued pursuant
to, and shall in all respects be subject to, the provisions of the Declaration
of Trust of the Trust dated as of February 5, 1997, including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration,
as the same may be amended from time to time (the "Declaration"). Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Common Securities
Guaranty to the extent provided therein, the terms of which are incorporated by
reference herein. The Sponsor will provide a copy of the Declaration, the
Common Securities Guaranty and the Indenture to the Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance of this Certificate, the Holder agrees to treat, for
United States federal income tax purposes, the Debt as indebtedness and the
Common Securities as evidence of undivided beneficial ownership in the Debt.
43
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
_____day of ______________, 1997.
REPUBLIC CAPITAL TRUST
GUARANTEED to the extent provided By: _________________________
in the Common Securities Guaranty, Name: Steven E. Trager
incorporated herein by reference: Title: Republic Trustee
REPUBLIC BANCORP, INC.
By:________________________________
Title:_____________________________
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be identical in
amount to the Distributions payable on each Preferred Security, which is at a
rate per annum of 8.5% (the "Coupon Rate") of the stated liquidation amount of
$100 per Preferred Security, such rate being the rate of interest payable on the
Debt to be held by the Trust. Except as set forth below in respect of an
Extension Period, Distributions in arrears for more than one quarterly period
will bear interest thereon compounded quarterly at the Coupon Rate (to the
extent permitted by applicable law). The term "Distributions" as used herein
includes cash distributions and any such compounded distribution and any
Additional Interest paid on the Debt unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debt held by
the Trust and to the extent the Trust has funds available therefor. The amount
of Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears on January 1, April 1, July 1 and
October 1 of each year, commencing on April 1, 1997. The Debt Issuer has the
right under the Indenture to defer payments of interest by extending the
interest payment period at any time and from time to time on the Debt for a
period not exceeding 20 consecutive quarterly periods (each an "Extension
Period"), during which Extension Period no interest will be due and payable on
the Debt, PROVIDED, that no Extension Period shall be initiated while accrued
interest with respect to prior, completed Extension Periods is unpaid or extend
beyond the date of the maturity of the Debt. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debt Issuer may further extend such Extension Period; PROVIDED, THAT such
Extension Period together with all such previous and further extensions thereof
may not exceed 20 consecutive quarterly periods or extend beyond the maturity of
the Debt. Distributions accrued during any Extension Period will be payable on
the next quarterly Distribution payment date to Holders as they appear on the
books and records of the Trust on the record date next following the termination
of the Extension Period. Upon the termination of any Extension Period and the
payment of all amounts then due, the Debt Issuer may commence a new Extension
Period, subject to the above requirements.
The Common Securities shall be redeemable, and, through the Debt, may
be converted into Class A Common Stock of the Debt Issuer as provided in the
Declaration.
44
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
_________________________________________________________
_________________________________________________________
_________________________________________________________
(Insert assignee's social security or tax identification number)
_________________________________________________________
_________________________________________________________
_________________________________________________________
(Insert address and zip code of assignee) and irrevocably appoints
_________________________________________________________
_________________________________________________________
_________________________________________________________
agent to transfer this Common 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 Common
Security Certificate)
Signature Guaranty:*__________
*Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Security registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
CONVERSION REQUEST
To: Steven E. Trager, as Conversion Agent
The undersigned owner of these Common Securities hereby
irrevocably exercises the option to convert these Common Securities, or the
portion below designated, into Class A Common Stock of Republic Bancorp, Inc.
(the "Common Stock") in accordance with the terms of the Declaration of Trust
(the "Declaration"), dated as of February 5, 1997 by Steven E. Trager, A. Scott
Trager, and L. Lee Kinsolving, Jr., as Republic Trustees, Wilmington Trust
Company, as Delaware Trustee, and Republic Bancorp, Inc. as
45
<PAGE>
Sponsor. Pursuant to the aforementioned exercise of the option to convert
these Common Securities, the undersigned hereby directs the Conversion Agent
(as that term is defined in the Declaration) to (i) exchange such Common
Securities for a portion of the Debt (as that term is defined in the
Declaration) held by the Trust (at the rate of exchange specified in the
terms of the Common Securities set forth as Annex I to the Declaration) and
(ii) immediately convert such Debt on behalf of the undersigned, into Common
Stock (at the conversion rate specified in the terms of the Common Securities
set forth as Annex I to the Declaration).
The undersigned also hereby directs the Conversion Agent that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: ________________
Number of Common Securities to be converted: ___________________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
__________________________________________
(Sign exactly as your name appears on the other side of this Common
Security Certificate) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
__________________________________________
__________________________________________
__________________________________________
__________________________________________
Signature Guaranty:* _______________________________
*Signature must be guaranteed by an "eligible guarantor institution" that is, a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents 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.
46
<PAGE>
EXHIBIT B
SPECIMEN OF DEBT
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE (THE
"SECURITIES LAWS"). THESE SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION UNDER APPLICABLE
SECURITIES LAWS, OR THE AVAILABILITY OF AN EXEMPTION THEREFROM. THIS
CERTIFICATE WILL NOT BE TRANSFERRED ON THE BOOKS OF THE CORPORATION OR ANY
TRANSFER AGENT ACTING ON BEHALF OF THE CORPORATION EXCEPT UPON THE RECEIPT OF AN
OPINION OF COUNSEL, SATISFACTORY TO THE CORPORATION, THAT THE PROPOSED TRANSFER
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF ALL APPLICABLE SECURITIES LAWS,
OR THE RECEIPT OF EVIDENCE, SATISFACTORY TO THE CORPORATION, THAT THE PROPOSED
TRANSFER IS THE SUBJECT OF AN EFFECTIVE REGISTRATION STATEMENT UNDER ALL
APPLICABLE SECURITIES LAWS
NO. 01 PRINCIPAL AMOUNT $____________
REPUBLIC BANCORP, INC.
8.5% SUBORDINATED DEFERRABLE INTEREST DEBT SECURITY DUE 2027
REPUBLIC BANCORP, INC., a Kentucky corporation (the "Corporation"), which term
includes any successor corporation under the Indenture hereinafter referred to,
for value received, hereby promises to pay to Republic Capital Trust, a Delaware
business trust, or registered assigns, the principal sum of Ten Million Dollars
($10,000,000) on April 1, 2027, and to pay interest on said principal sum from
[THE DATE OF ISSUE], 1997, or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
January 1, April 1, July 1 and October 1 of each year commencing April 1, 1997,
at the rate of Eight and 5/10 Per Cent (8.5%) per annum until the principal
hereof shall have become due and payable, and on any overdue principal and
premium, if any, 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 same rate per annum compounded quarterly. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Debt Security is not a Business Day, then payment of
interest 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 is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
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 Debt Security (or one or more Predecessor Securities, as
defined in said Indenture) is registered at the close of business on the Record
Date for such interest installment, which shall be the close of business on the
15th Business Day next preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered holders on such Record Date and may be paid to the
Person in whose name this Debt Security (or one or more Predecessor Securities)
is registered at the close of business on
47
<PAGE>
a special record date to be fixed by the Corporation for the payment of such
defaulted interest, notice whereof shall be given to the registered holders
of Debt Securities not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debt Security shall be payable at the office or agency of
the Corporation (or other paying agent appointed by the Corporation)
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; PROVIDED, however, that payment of interest may be made at the
option of the Corporation by check mailed to the registered holder at such
address as shall appear in the Security Register.
The indebtedness evidenced by this Debt Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debt Security is
issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debt Security, by accepting the same, agrees to and shall be
bound by the provisions of the Indenture. Each holder hereof, by his or her
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
The provisions of this Debt Security are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed.
REPUBLIC BANCORP, INC. Dated: __________, 1997
By:_____________________________________
Name:__________________________________
Title:____________________________________
Attest:__________________________________
Name:__________________________________
Title:____________________________________
[Text of Reverse Side]
This Debt Security of the Corporation is issued under and pursuant to the
Indenture between the Corporation and Steven E. Trager, as trustee, dated
February 5, 1997 (the "Indenture"), to which Indenture reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Corporation and the holders of the Debt Securities
(referred to herein as the "Debt Securities") of which this Debt Security is a
part. The summary of the terms of this Debt Security contained herein does not
purport to be complete
48
<PAGE>
and is qualified by reference to the Indenture. The Debt Securities are
limited in aggregate principal amount as specified in said Indenture.
The Corporation shall have the right to redeem this Debt Security at the
option of the Corporation, in whole or in part at any time on or after April 1,
2002 (an "Optional Redemption"), at the redemption price (the "Redemption
Price") equal to the principal amount being redeemed, plus accrued and unpaid
interest to the redemption date, which shall be paid prior to 12:00 noon,
Louisville, Kentucky time, on the date of such redemption or at such earlier
time as the Corporation determines. In addition, the Corporation has the right
to redeem the Debt Securities, in whole or in part, at any time at the
Redemption Price upon the occurrence, and during the continuation, of any of the
following events: (i) the Republic Trustees shall have received an opinion of
independent counsel experienced in practice under the federal securities laws
that there is more than an insubstantial risk that the Trust is or will be
considered an Investment Company or (ii) the Board of Governors of the Federal
Reserve System or a Federal Reserve Bank (the "Federal Reserve") shall have
advised the Debt Issuer that the Preferred Securities are not or will be
considered not to be "Tier 1 Capital" of the Debt Issuer under the regulations,
policies and guidelines of the Federal Reserve; or (iii) a Tax Event. Any
redemption pursuant to this paragraph will be made upon not less than 10 days
nor more than 60 days notice, at the Redemption Price. If the Debt Securities
are only partially redeemed by the Corporation pursuant to an Optional
Redemption, the Debt Securities will be redeemed pro rata or by lot or by any
other method utilized by the Corporation.
On the terms and subject to the conditions set forth in the Indenture, the
Holder of the Debt Securities has the right, exercisable at any time on or
before 5:00 p.m. (Louisville, Kentucky time) on the Business Day immediately
preceding the date of repayment of such Securities, whether at maturity or upon
redemption, to convert such Securities into fully paid and nonassessable whole
shares of Republic Common Stock at a conversion rate of 5 shares of Republic
Common Stock for each $100 in aggregate principal amount of Securities, subject
to adjustment under certain circumstances, as provided in the Indenture.
In the event of redemption of this Debt Security in part only, a new Debt
Security or Debt Securities for the unredeemed portion hereof will be issued in
the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debt Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation, with the
consent of the holders of not less than a majority in aggregate principal amount
of the Debt Securities affected at the time outstanding, as specified in the
Indenture, to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Debt Securities; provided, however, that no such
supplemental indenture shall among other things, (i) extend the fixed maturity
of any Debt Securities, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof, without the consent of the holder
49
<PAGE>
of each Debt Security so affected, or (ii) reduce, the aforesaid percentage
of Debt Securities, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holder of each Debt
Security then outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount
of the Debt Securities at the time outstanding affected thereby, on behalf of
all of the holders of the Debt Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any of
the Debt Securities. Any such consent or waiver by the registered holder of
this Debt Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and
owners of this Debt Security and of any Debt Security issued in exchange
herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debt Security.
No reference herein to the Indenture and no provision of this Debt Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of and interest on
this Debt Security at the time and place and at the rate and in the money herein
prescribed.
The Corporation shall have the right at any time during the term of the
Debt Securities and from time to time to extend the interest payment period of
the Debt Securities for up to 20 consecutive quarterly periods (each, an
"Extension Period") as provided in the Indenture. During the Extension Period
no interest shall be due and payable; provided that no Extension Period may
extend beyond the Maturity Date. To the extent permitted by applicable law,
interest on the Debt Securities, the payment of which has been deferred, will
bear interest thereon compounded quarterly. At the end of an Extension Period,
the Corporation shall pay all interest accrued and unpaid on the Debt
Securities, including any Additional Interest and Compounded Interest, that
shall be payable.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, this Debt Security is transferable by the registered holder
hereof on the Debt Security Register of the Corporation, upon surrender of this
Debt Security for registration of transfer at the office or agency of the
Corporation in Louisville, Kentucky, accompanied by a written instrument or
instruments of transfer in form satisfactory to the Corporation duly executed by
the registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debt Securities of authorized denominations and for
the same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such
transfer, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debt
Security, the Corporation may deem and treat the registered holder hereof as the
absolute owner hereof for the purpose of receiving payment of or on account of
the principal hereof and premium, if any, and interest due hereon and for all
other purposes, and the Corporation shall not be affected by any notice to the
contrary.
50
<PAGE>
No recourse shall be had for the payment of the principal or premium on, if
any or the interest on this Debt Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Corporation or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for, the issuance hereof,
expressly waived and released.
The Debt Securities are issuable only in registered form without coupons in
denominations of $100 and any integral multiple thereof. All terms used in this
Debt Security that are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF KENTUCKY SHALL GOVERN THE INDENTURE
AND THE DEBT SECURITIES WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
NOTICE OF CONVERSION
To: Republic Bancorp, Inc.
The undersigned owner of this Security hereby irrevocably exercises
the option to convert this Security, or the portion below designated, into Class
A Common Stock (the "Common Stock") of Republic Bancorp, Inc. (the "Company") in
accordance with the terms of the Indenture referred to in the Security, between
the Company and Steven E. Trager, as Trustee, and directs that the shares
issuable and deliverable upon conversion, together with any check in payment for
fractional shares, be issued in the name of and delivered to the undersigned,
unless a different name has been indicated in the assignment below. If shares
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Date:_______________
Principal Amount of Securities to be converted ($100 or integral multiples
thereof): _______________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
(Signed exactly as your name appears on the Security) (for conversion only)
51
<PAGE>
Please print or typewrite name and address, including zip code, and social
security or other identifying number.
____________________________________________________
____________________________________________________
____________________________________________________
Signature Guarantee:*_______________________
*Signature must be guaranteed by an "eligible institution," that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Security Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the security
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.)
52
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EXHIBIT C
FORM OF PURCHASE AGREEMENT
53
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SUBSCRIPTION AGREEMENT
Republic Bancorp, Inc.
Republic Capital Trust
Republic Corporate Center
Louisville, Kentucky 40202
Gentlemen:
This subscription is submitted to Republic Capital Trust (the
"Trust"), a Delaware Business Trust, and Republic Bancorp, Inc. (the "Company")
in accordance with and subject to the terms and conditions described in this
Subscription Agreement (the "Agreement") and the Private Placement Memorandum
dated January 30, 1997 (the "Memorandum"), relating to an offering (the
"Offering") of Quarterly Income Preferred Securities, $100 par ("Preferred
Stock"), of the Trust and the securities to be issued by the Company in
connection therewith, namely, the Guaranty to be entered into between the
Company and a trustee on behalf of the holders of the Preferred Securities (the
"Guaranty") and the 8.5% Convertible Subordinated Debt Securities of the Company
maturing March 31, 2027 (the "Subordinated Debt Securities"), with each $100 in
principal of Subordinated Debt Securities convertible into five shares of the
Class A Common Stock of the Company (the "Class A Common Stock") (the Preferred
Securities, the Guaranty, the Subordinated Debt Securities and the Class A
Common Stock are, collectively, the "Securities").
The undersigned (the "Subscriber"), intending to be legally bound,
hereby irrevocably agrees to purchase from the Trust the number of shares of
Preferred Securities set forth on the signature page hereof, at $100 per
Preferred Securities, for a total amount constituting the purchase price (the
"Purchase Price").
I. CLOSING.
A. TIME AND PLACE. The initial closing (the "Initial Closing") of
the transactions contemplated by the Memorandum shall be held at the offices of
the Company, 601 West Market Street, Louisville, Kentucky 40202, on February 5,
1997 at 2:00 p.m., or on such later date or at such other time and place as the
Trust and the Company may direct (the "Initial Closing Date"). If the date of
this Agreement is on or prior to the Initial Closing Date, the closing of the
transactions contemplated by this Agreement shall occur at the Initial Closing.
If the date of this Agreement is after the Initial Closing Date, the closing of
the sale and purchase of the Preferred Securities shall occur on the date of the
Agreement or, if not a business day, the next business day thereafter (a
"Subsequent Closing Date") (the Initial Closing Date and a Subsequent Closing
Date are collectively referred to as the "Closing Date"). The closing of the
transactions contemplated by this Agreement on the Closing Date shall be subject
to the terms and conditions of this Agreement.
B. PAYMENT OF THE PURCHASE PRICE BY THE SUBSCRIBER. The Purchase
Price shall be due and payable on the Closing Date. All payments of the
Purchase Price shall be made in immediately available funds by bank wire
transfer or by the delivery to the Trust of a certified check payable to the
Trust. If wire transfer is utilized, the Subscriber must complete the
information called for on the signature page hereof relating thereto.
Within ninety (90) days of the Closing Date, the Trust shall deliver to the
Subscriber a certificate registered in the Subscriber's name and representing
the Preferred Securities purchased
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pursuant to this Agreement, which certificate shall bear the legend set forth
in Section 3.L hereof, together with any legends required under applicable
state securities or other applicable laws (the "Legends").
2. ACCEPTANCE OF SUBSCRIPTION. The date of this Agreement shall be the
date it is accepted and executed by the Company and the Trust. The Subscriber
understands and agrees that the Trust and the Company in their sole discretion
reserve the right to accept or reject this subscription and any other
subscription for the Securities, in whole or in part, at any time prior to the
Closing Date, notwithstanding prior receipt by the Subscriber of oral or written
notice of acceptance. If the subscription is rejected in whole, this
Subscription Agreement shall thereafter be of no further force or effect.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SUBSCRIBER. The
Subscriber hereby represents, warrants and agrees with the Trust and the
Company, as follows:
A. The address set forth below is the Subscriber's true and correct
residence and the Subscriber has no present intention of becoming a resident of
any other state or jurisdiction.
B. The Subscriber has received and carefully reviewed the Memorandum
and all attachments thereto, and understands the information contained therein.
The Subscriber and the Subscriber's attorney, accountant, or adviser have had a
reasonable opportunity to inspect all documents, records, books and material
contracts pertaining to this investment, including, without limitation, the
Memorandum. The Subscriber confirms that the Securities are being purchased
without the Subscriber's receipt of any offering literature other than the
Memorandum. Except for information set forth in the Memorandum, the Subscriber
is not relying on the Trust or the Company or any agent of the Trust or the
Company with respect to the tax and other economic considerations of an
investment in the Securities.
C. The Subscriber has had a reasonable opportunity to ask questions
and receive answers from a person or persons acting on behalf of the Trust and
the Company concerning the Offering of the Securities, the terms and conditions
and all other aspects of investment in the Trust and the Company, and all such
questions have been answered to the full satisfaction of the Subscriber.
D. The Subscriber is not subscribing for the Securities as a result
of or subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio, or presented at any seminar or meeting, or any solicitation
of a subscription by a person other than a representative of the Trust or the
Company.
E. If the Subscriber is a natural person, the Subscriber has reached
the age of majority in the jurisdiction in which the Subscriber resides; the
Subscriber has adequate means of providing for the Subscriber's current
financial needs and contingencies, is able to bear the substantial economic
risks of an investment in the Securities for an indefinite period of time, has
no need for liquidity in such investment, and, at the present time, could afford
a complete loss of such investment. The Subscriber's overall commitment to
investments which are not readily marketable is reasonable in relation to the
Subscriber's net worth. The Subscriber recognizes
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that there are substantial restrictions on the transferability of the
Securities under federal and state securities laws, that the Securities may
have to be held indefinitely and that it may not be possible for the
Subscriber to liquidate the investment in the Trust and the Company. The
Subscriber recognizes that investment in the Securities is speculative in
nature, and involves substantial risks, including the risk of loss of the
entire amount of such investment, and has taken full cognizance of and
understands all of the risks related to the purchase of the Securities.
F. The Subscriber and the Subscriber's advisers have such knowledge
and experience in financial, tax and business matters so as to enable the
Subscriber to utilize the information made available to the Subscriber in
connection with the Offering to evaluate the merits and risks of an investment
in the Securities, and to make an informed investment decision with respect
thereto.
G. The Subscriber understands that the Offering and sale of the
Securities is intended to be exempt from registration under the Securities Act
of 1933, as amended (the "Act"), by virtue of Section 4(2) of the Act and the
provisions of Regulation D promulgated thereunder. The Securities have not been
registered under the Act or under the securities laws of any state and neither
the Trust nor the Company will be under any obligation to so register the
Securities. The Subscriber represents that the Subscriber is purchasing the
Securities for the Subscriber's own account, for investment and not with a view
to resale, distribution, or other disposition, and Subscriber has no present
plans to enter into any contract, undertaking, agreement or arrangement for any
such resale, distribution or other disposition. The Subscriber will not sell or
otherwise transfer the Preferred Securities, and any Securities received in
respect thereof, without registration under the Act and applicable state
securities laws, or pursuant to an exemption therefrom.
H. The Subscriber is an "accredited investor" as that term is
defined in Rule 501 promulgated under the Act, inasmuch as the Subscriber meets
the requirements of one or more of the subparagraphs listed in EXHIBIT A hereto
as of the date of this Agreement, and if there is any material change in such
status prior to the sale of the Preferred Securities, the Subscriber will
immediately notify the Trust and the Company in writing.
I. The execution, delivery and performance of this Agreement by the
Subscriber (i) will not constitute a default under or conflict with any
agreement or instrument to which the Subscriber is a party or by which it or its
assets are bound, (ii) will not conflict with or violate any order, judgment,
decree, statute, ordinance or regulation applicable to the Subscriber
(including, without limitation, any applicable laws relating to permissible
legal investments) and (iii) do not require the consent of any person or entity.
This Agreement has been duly authorized, executed and delivered by the
Subscriber and constitutes the valid and binding agreement of the Subscriber
enforceable against it in accordance with its terms. Subscriber has all
requisite power to purchase the Securities subscribed for hereunder and shall
deliver to the Trust and the Company such documents and legal opinions
reasonably requested by it with respect to such authority and power.
J. The Subscriber has not retained, or otherwise entered into any
agreement or understanding with, any broker or finder in connection with the
purchase of Securities by the Subscriber, and neither the Trust nor the Company
will incur any liability for any fee, commission
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or other compensation on account of any such retention, agreement or
understanding by the Subscriber.
K. The Subscriber, if executing this Agreement in a representative
or fiduciary capacity, has full power and authority to execute and deliver this
Agreement in such capacity and on behalf of the subscribing individual,
partnership, trust, estate, corporation, or other entity for whom the Subscriber
is executing this Agreement, and such individual, partnership, trust, estate,
corporation, or other entity has full right and power to enter into this
Agreement and make an investment in the Securities.
L. The Subscriber understands that the certificate or certificates
representing the Preferred Securities, and any Securities issued in respect
thereof, shall bear a legend in substantially the following form, together with
any legend required by applicable state securities or other applicable law, and
the Subscriber shall not transfer any or all of the Securities, or any interest
therein, except in accordance with the terms of such legend:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or the
securities laws of any state (the "Securities Laws"). These
securities (and any securities into which they may be converted) may
not be offered, sold, transferred, pledged or hypothecated in the
absence of registration under applicable Securities Laws, or the
availability of an exemption therefrom. This certificate will not be
transferred on the books of the Corporation or any transfer agent
acting on behalf of the Corporation except upon the receipt of an
opinion of counsel, satisfactory to the Corporation, that the proposed
transfer is exempt from the registration requirements of all
applicable Securities Laws, or the receipt of evidence, satisfactory
to the Corporation, that the proposed transfer is the subject of an
effective registration statement under all applicable Securities Laws.
M. The Subscriber: [i] has not filed a registration statement which
is the subject of a currently effective stop order entered pursuant to any
state's law within five years prior to the date hereof; [ii] has not been
convicted within five years prior to the date hereof of any felony or
misdemeanor in connection with the purchase or sale of any security or any
felony involving fraud or deceit including, but not limited to, forgery,
embezzlement, obtaining money under false pretenses, larceny or conspiracy to
defraud; [iii] is not currently subject to any state's administrative order or
judgment entered by that state's securities administrator within five years
prior to the date hereof and is not subject to any state's administrative order
or judgment in which fraud or deceit was found and the order or judgment was
entered within five years of the date hereof; [iv] is not currently subject to
any state's administrative order or judgment which prohibits the use of any
exemption from registration in connection with the purchase or sale of
securities; [v] is not subject to any order, judgment or decree of any court of
competent jurisdiction temporarily or preliminarily restraining or enjoining,
and is not subject to any order, judgment or decree of any court of competent
jurisdiction, entered within five years prior to the date hereof, permanently
restraining or enjoining the Subscriber from engaging in or continuing any
conduct or practice in connection with the purchase or sale of any security or
involving the making of any false filing with any state.
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4. TERMINATION. The Company and the Trust will each have the right to
terminate Offering, and this Agreement, if Preferred Securities with an
aggregate liquidation amount of $9,700,000 have not been fully subscribed and
paid for February 5, 1997. This Agreement will terminate automatically if the
Closing Date has not occurred by the close of business on June 30, 1997.
5. SURVIVAL. The representations, warranties, and agreements of the
Subscriber contained herein shall be true and correct in all material respects
on and as of the Closing Date as if made on and as of such date and shall
survive the execution and delivery of this Agreement and the purchase of the
Securities by the Subscriber.
6. INDEMNIFICATION. The Subscriber understands the meaning and legal
consequences of the representations and warranties contained in this Agreement
and agrees to indemnify and hold harmless the Trust and the Company, their
directors, officers, agents and attorneys, from and against any and all loss,
damage, liability, claim, cause of action, judgment or expense, including
reasonable attorneys' fees to the extent permitted by law, due to or arising out
of a breach of any representation or warranty of the Subscriber contained in
this Agreement.
7. MISCELLANEOUS.
A. COOPERATION. Subject to the terms and conditions herein
provided, each of the parties hereto shall use reasonable efforts to take, or
cause to be taken, such action, to execute and deliver, or cause to be executed
and delivered, such additional documents and instruments and to do, or cause to
be done, all things necessary, proper or advisable under the provisions of this
Agreement and under applicable law to consummate and make effective the
transactions contemplated hereby.
B. NOTICES. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
sent by facsimile transmission or sent by mail, postage prepaid. Any such
notice shall be deemed given when so delivered personally, telegraphed or sent
by facsimile transmission or, if mailed by certified or registered mail, three
days after the date of deposit in the mails, as follows:
If to the Trust or the Company, one copy to: Steven Trager
Republic Bancorp, Inc.
Republic Capital Trust
Republic Corporate Center
Louisville, Kentucky 40202
Telecopier: (502) 561-7188
with a copy to: Cynthia W. Young, Esq.
Wyatt, Tarrant & Combs
2800 Citizens Plaza
Louisville, KY 40202
Telecopier: (502) 589-0309
If to the Subscriber, one copy to the address indicated on the signature
page hereof.
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Any party, by notice given in accordance with this section to the other
party, may designate another address or person for receipt of notices hereunder.
Notices by a party may be given by counsel to such party.
C. ENTIRE AGREEMENT. This Agreement constitutes the complete
understanding between the parties with respect to the subject matter hereof and
supersedes all prior agreements or undertakings, written or oral, and all
contemporaneous oral agreements or understandings with respect to such subject
matter.
D. AMENDMENTS. This Agreement may not be amended nor shall any
waiver, change, modification, consent or discharge be effected except by an
instrument in writing executed by or on behalf of the party seeking or against
whom enforcement of any amendment, waiver, change, modification, consent or
discharge is sought.
E. NO WAIVER. Any failure or delay on the part of a party in
exercising any power or right hereunder shall not operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, preclude
any other or further exercise thereof or the exercise of any other right or
power hereunder or otherwise available in law or in equity.
F. SEVERABILITY. If any provisions of this Agreement for any reason
shall be held to be illegal, invalid, or unenforceable, such illegality shall
not affect any other provision of this Agreement, but this Agreement shall be
construed as if such illegal, invalid or unenforceable provision had never been
herein.
G. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Kentucky.
H. BINDING EFFECT. This Agreement and all of its provisions, rights
and obligations shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors. This Agreement may not be
assigned by any party without the express written consent of the other and any
purported assignment, unless so consented to, shall be void and without effect.
Nothing contained herein, express or implied, is intended or shall be construed
to confer upon or to give anyone other than the parties hereto and their
respective representatives and successors any rights or benefits under or by
reason of this Agreement.
I. COUNTERPARTS. The Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
J. CAPTIONS. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the Subscriber hereto has executed this Agreement
as of _______________, 1997.
Number of Quarterly Income Preferred Securities
($100 Liquidation Amount per Preferred Security):
_______________________________
Total Investment ($50,000 minimum):
$
----------------------------
__________________________________________
Name of Subscriber [Type or Print Name as
You Want It to Appear on the Certificate]
__________________________________________
Signature(s) and title, if applicable
Address:__________________________________
__________________________________________
__________________________________________
Telephone Number:________________________
Telecopier Number:________________________
Social Security or
Federal Tax I.D. No.:______________________
FOR WIRE TRANSFER OF PURCHASE PRICE:
Name of Transferring Bank:
____________________________________
Name of Account:____________________
Account Number:_____________________
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ACCEPTED as of ________________, 1997, which date constitutes the date
of this Subscription Agreement:
REPUBLIC BANCORP, INC. REPUBLIC CAPITAL TRUST
By:______________________________ By:______________________________
Title:____________________________ Title:___________________________
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EXHIBIT A
Under Regulation D promulgated under the Securities Act of 1933, as
amended, an "accredited investor" is:
(a) A natural person who had individual income of more than $200,000 in each of
the most recent two years, or joint income with that person's spouse in
excess of $300,000 in each of the most recent two years and who reasonably
expects to reach that same income level for the current year;
(b) A natural person whose individual net worth, or joint net worth with that
person's spouse, is in excess of $1,000,000;
(c) A trust, with total assets in excess of $5,000,000, which is not formed for
the purpose of acquiring the Securities, and whose purchase is directed by
a person who has such knowledge and experience in financial and business
matters that such person is capable of evaluating the risks and merits of
an investment in the Securities;
(d) A corporation, a partnership, an organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, or a
Massachusetts or similar business trust, not formed for the specific
purpose of acquiring the Securities, with total assets in excess of
$5,000,000;
(e) A bank as defined in Section 3(a)(2) of the Act or a savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the
Act, whether acting in its individual or fiduciary capacity; a broker or
dealer registered pursuant to Section 15 of the Securities Exchange Act of
1934; an insurance company as defined in Section 2(13) of the Act; an
investment company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of the
Investment Company Act of 1940; a Small Business Investment Company
licensed by the U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958; a plan established and
maintained by a state, its political subdivisions, or an agency or
instrumentality of a state or its political subdivisions, for the benefit
of its employees, if such plan has total assets in excess of $5,000,000; or
an employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974, if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of the Employee Retirement Income
Security Act of 1974, which is either a bank, savings and loan association,
insurance company, or registered adviser, or if the employee benefit plan
has total assets in excess of $5,000,000 or, if the employee benefit plan
is a self-directed plan, the investment decisions are made solely by
persons who are accredited investors;
(f) A private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of 1940; or
(g) An entity in which all of the equity owners meet the requirements of at
least one of the above subparagraphs for accredited investors.
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INDENTURE
INDENTURE, dated as of February 5, 1997, between Republic Bancorp, Inc.,
a corporation duly organized and existing under the laws of the State of
Kentucky (the "Corporation"), having its principal office at 601 West Market
Street, Louisville, Kentucky 40202, and Steven E. Trager, an individual, as
Trustee (herein called the "Trustee").
RECITALS OF THE CORPORATION
WHEREAS, Republic Capital Trust, a Delaware business trust (the
"Trust"), formed under the Declaration of Trust among the Corporation, as
trust sponsor, Steven E. Trager, as property trustee (the "Property
Trustee"), and Steven E. Trager, L. Lee Kinsolving, Jr., and A. Scott Trager,
as regular trustees (the "Republic Trustees"), dated as of February 5, 1997
(as the same may be supplemented or amended from time to time in accordance
with its terms, the "Declaration"), pursuant to the subscription agreements
(the "Purchase Agreements"), among the Corporation, the Trust and the
subscribers named therein, will issue and sell up to 97,000 of its 8.5%
Preferred Securities (the "Preferred Securities") with a liquidation amount
of $100 per Preferred Security;
WHEREAS, the trustees of the Trust, on behalf of the Trust, will execute
and deliver to the Corporation Common Securities (the "Common Securities") of
the Trust, registered in the name of the Corporation, in an aggregate amount
equal to approximately three percent of the capitalization of the Trust (the
"Common Securities");
WHEREAS, the Trust will use the proceeds from the sale of the Preferred
Securities and the Common Securities to purchase from the Corporation 8.5%
Convertible Subordinated Debentures due 2027 (the "Debt Securities") of the
Corporation;
WHEREAS, the Corporation has duly authorized the creation of the Debt
Securities of the tenor and amount herein set forth and to provide therefor
the Corporation has duly authorized the execution and delivery of this
Indenture;
WHEREAS, so long as the Trust is a Holder of Debt Securities, and any
Preferred Securities are outstanding, the Declaration provides that the
holders of Preferred Securities may cause the Conversion Agent (as defined in
the Declaration) to [a] exchange such Preferred Securities for Debt
Securities held by the Trust and [b] immediately convert such Securities into
Common Stock of the Corporation; and
WHEREAS, all things necessary to make the Debt Securities, when executed
by the Corporation and authenticated and delivered hereunder and duly issued
by the Corporation, the valid obligations of the Corporation, and to make
this Indenture a valid agreement of the Corporation, 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 Debt
Securities by the holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all holders of the Debt Securities, as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All accounting terms
used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles. 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.
"Additional Interest" shall have the meaning set forth in Section 2.5.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10%
or more of the outstanding voting securities or other ownership interests of
the specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control
with the specified Person, (d) a partnership in which the specified Person is
a general partner, (e) any officer or director of the specified Person, and
(f) if the specified Person is an individual, any entity of which the
specified Person is an officer, director or general partner.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
"Board of Directors" shall mean the board of directors or the executive
committee or any other duly authorized designated officers of the Corporation.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" shall mean, with respect to the Debt Securities, any day
other than a day on which federal or state banking institutions in
Louisville, Kentucky, are authorized or obligated by law, executive order or
regulation to close.
"Certificate" shall mean a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer
of the Corporation.
"Common Securities" shall mean undivided beneficial interests in the
assets of the Trust which rank pari passu with Preferred Securities issued by
the Trust; provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
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"Common Securities Guaranty" shall mean, in respect of the Trust, any
guarantee that the Corporation may enter into with any Person or Persons and
that operates directly or indirectly for the benefit of holders of Common
Securities of the Trust.
"Common Stock" means the Class A Common Stock of the Corporation.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Corporation" shall mean Republic Bancorp, Inc., a Kentucky corporation,
and, subject to the provisions hereof, shall include its successors and
assigns.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" shall have the meaning stated in
recitals of this Indenture and more particularly means any debt security or
debt securities, as the case may be, authenticated and delivered under this
Indenture.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Direct Action" means a proceeding directly instituted by a holder of
Preferred Securities for enforcement of payment to such holder of the
principal of or interest on the Debt Securities having a principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
holder on or after the respective due date specified in the Debt Securities,
if an "Event of Default" under the Declaration has occurred and is continuing
and such event is attributable to the failure of the Corporation to pay
interest or principal on the Debt Securities on the date such interest or
principal is otherwise payable (or in the case of redemption, on the
redemption date.)
"Dissolution Event" means that, subject to the receipt by the
Corporation of prior approval from the Board of Governors of the Federal
Reserve System or a Federal Reserve Bank (the "Federal Reserve") if then
required under applicable capital guidelines or policies of the Federal
Reserve, the Trust is to be dissolved in accordance with the Declaration, and
the Debt Securities are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with such Declaration.
"Event of Default" shall mean any event specified in Section 8.01,
continued for the period of time, if any, and after the giving of the notice,
if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Indenture" shall mean this indenture as originally adopted or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of Debt Securities established as
contemplated hereunder.
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"Interest" shall include all interest payable on the Debt Securities
including any Additional Interest and Compounded Interest.
"Interest Payment Date," when used with respect to any installment of
interest on a Debt Security, shall mean the date specified in such Debt
Security or in this Indenture or in an indenture supplemental hereto as the
fixed date on which an installment of interest with respect to Debt
Securities is due and payable.
"Maturity Date" means April 1, 2027.
"Notice of Conversion" means the notice to be given by a holder of Trust
Securities to the Conversion Agent to exchange such Trust Securities for Debt
Securities and to convert such Debt Securities into Common Stock.
"Officers' Certificate" shall mean a certificate signed by the Chairman
of the Board, the President, any Vice President, and by the Treasurer, an
Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary
or an Assistant Secretary of the Corporation, and delivered to the Trust.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Corporation.
"Original Issue Date" of any Debt Security (or any portion thereof)
shall mean the earlier of (a) the date of such Debt Security or (b) the date
of any Debt Security (or portion thereof) for which such Debt Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
The term "outstanding", when used with reference to Debt Securities,
shall mean, as of any particular time, all Debt Securities issued and
delivered under this Indenture, except
(a) Debt Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or its fiduciary or shall have been set aside and
segregated in trust by the Corporation; provided that, if such Debt
Securities, or portions thereof, are to be redeemed prior to maturity
thereof, notice of such redemption shall have been given as provided
herein or provision shall have been made for giving such notice.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security delivered hereunder in lieu of a lost,
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destroyed or stolen Debt Security shall be deemed to evidence the same debt
and guarantee as the lost, destroyed or stolen Debt Security.
"Preferred Securities" shall mean undivided beneficial interests in the
assets of the Trust which rank pari passu with Common Securities issued by
such Trust; provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guaranty" shall mean, in respect of the Trust, any
guaranty that the Corporation may enter into with or for the benefit of
holders of Preferred Securities of the Trust.
"Record Date" shall have the meaning set forth in the Debt Securities.
"Redemption Date" means the date fixed for redemption of Debt Securities
pursuant to this Indenture.
"Redemption Price" shall have the meaning set forth in Section 3.1.
"Securityholder," "holder of Debt Securities," or other similar terms,
shall mean any Person in whose name at the time a particular Debt Security is
registered on the register kept by the Corporation or the Trustee for that
purpose in accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Corporation, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of
such obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor; (ii)
all capital lease obligations of such obligor; (iii) all obligations of such
obligor issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such obligor and all obligations of such
obligor under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of
such obligor for the reimbursement on any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction; (v) all
obligations of the type referred to in clauses (i) through (iv) of other
Persons for the payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) of other Persons secured by any lien
on any property or asset of such obligor (whether or not such obligation is
assumed by such obligor), except for any indebtedness between or among the
Corporation and any of its Affiliates and any other debt securities issued
pursuant to this Indenture and guarantees in respect of those debt
securities. Notwithstanding the forgoing, Senior Indebtedness shall not
include any portion of the amount necessary to pay all principal, premium and
interest, if any, on any indebtedness or obligation of the Corporation which
would have been paid to, and retained by, the holders of such subordinate
indebtedness (whether as a result of the receipt of payments by the holders
of such subordinate indebtedness from the Corporation 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 subordinate
indebtedness pursuant to any provision of such other indebtedness for the
payment over of amounts received on account of such other indebtedness to the
holders of such subordinate indebtedness) but for the fact that such
subordinate indebtedness is subordinated or junior in
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right of payment to trade accounts payable or accrued liabilities of the
Corporation arising in the ordinary course of business.
"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt
Security as the fixed date on which the principal, together with any accrued
and unpaid interest (including Compounded Interest), of such Debt Security or
such installment of interest is due and payable.
"Subsidiary" shall mean with respect to any Person, (i) any corporation
at least a majority of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of the
outstanding partnership or similar interests of which shall at the time be
owned by such Person, or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries and (iii) any limited partnership
of which such Person or any of its Subsidiaries is a general partner. For
the purposes of this definition, "voting stock" means shares, interests,
participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"Tax Event" has the meaning specified in Annex I to the Declaration.
"Trust" shall mean the Republic Capital Trust, a Delaware business
trust, or any other similar trust created for the purpose of issuing
Preferred Securities in connection with the issuance of Debt Securities under
this Indenture.
"Trust Securities" shall mean Common Securities and Preferred Securities
of the Trust.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of
a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 2.1. TERMS GENERALLY.
The Debt Securities are hereby authorized as a single series. The
aggregate principal amount of Debt Securities outstanding at any time shall
not exceed $10,000,000.
The Debt Securities shall be issued pursuant to an exemption from
registration under the Securities Act and a restricted securities legend
shall appear thereon, unless otherwise determined by the Corporation in
accordance with applicable law.
SECTION 2.2. MATURITY.
At the Maturity Date the Debt Securities shall mature and the principal
thereof shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest and Additional Interest
thereon, if any.
SECTION 2.3. CERTIFICATION.
Debt Securities shall be issued in fully registered certificated form
without interest coupons. Principal and interest on Debt Securities will be
payable, the transfer of such Debt Securities will be registrable and such
Debt Securities will be exchangeable for Debt Securities bearing identical
terms and provisions at the office or agency of the Corporation; provided,
however, that payment of interest may be made at the option of the
Corporation by check mailed to the holder of any Debt Security at such
address as shall appear in the Debt Security Register for such series of Debt
Securities.
SECTION 2.4. DISSOLUTION EVENT.
(a) In connection with a dissolution of the Trust in accordance with
the Declaration pursuant to a Dissolution Event,
(i) the Debt Securities held by the Property Trustee may be
presented to the Corporation and any Preferred Security Certificate will be
deemed to represent beneficial interests in Debt Securities having an
aggregate principal amount equal to the aggregate liquidation amount of such
Preferred Securities until such Preferred Security Certificate is presented
to the Corporation for transfer or reissuance at which time such Preferred
Security Certificates will be canceled and a Debt Security previously held by
the Property Trustee registered in the name of the holder of the Preferred
Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security
Certificate canceled, will be executed by the Corporation and delivered to
such holder.
(b) The Debt Securities may not be transferred except in compliance with
the restricted securities legend, applicable to such Debt Securities, set
forth herein, unless otherwise determined by the Corporation in accordance
with applicable law.
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SECTION 2.5. INTEREST.
(a) Interest on the Debt Securities shall be at the rate of Eight and
5/10 percent (8.5%) per annum. The amount of interest payable for any period
will be computed on the basis of a 360-day year of twelve 30-day months.
Except as provided in the following sentence, the amount of interest payable
for any period shorter than a full quarterly period for which interest is
computed, will be computed on the basis of the actual number of days elapsed
in such a period (assuming each full month elapsed in such period consists of
30 days). In the event that any date on which interest is payable on the
Debt Securities is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
(b) If, at any time while the holder of any Debt Securities is the
Property Trustee, the Trust or Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Corporation will pay as additional interest
("Additional Interest") on the Debt Securities held by the Property Trustee,
such additional amounts as shall be required so that the net amounts received
and retained by such Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBT SECURITIES
SECTION 3.1. OPTIONAL REDEMPTION.
(a) The Corporation shall have the right to redeem the Debt Securities,
in whole or in part, from time to time, on or after April 1, 2002, at a
redemption price equal to 100% of the principal amount of the Debt Securities
plus any accrued and unpaid interest thereon to the date of such redemption
(the "Redemption Price"). Notwithstanding the foregoing, the Corporation
shall have the right to redeem the Debt Securities, in whole or in part, upon
a Dissolution Event (as defined in the Declaration) or a Tax Event, subject
to the terms of the Declaration.
Any redemption pursuant to this section will be made upon not less than
10 days nor more than 60 days notice given by the Corporation to the holder
of the Debt Securities, at the Redemption Price. The Corporation shall
notify the Trustee in writing of such redemption at least 10 days prior to
the date of such redemption. If Debt Securities are only partially redeemed
pursuant to this Section, Debt Securities shall be redeemed pro rata or by
lot or by any other method utilized by the Corporation. The Redemption Price
shall be paid prior to 12:00 noon, Louisville, Kentucky, time, on the date of
such redemption or at such earlier time as the Corporation determines,
provided that the Corporation shall deposit an amount sufficient to pay the
Redemption Price by 10:00 a.m., Louisville, Kentucky time, on the date such
Redemption Price is to be paid.
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SECTION 3.2. ELECTION TO REDEEM.
The election of the Corporation to redeem Debt Securities shall be
evidenced by a Board Resolution.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION PERIOD.
The Corporation shall have the right, at any time and from time to time
during the term of the Debt Securities, to defer payments of interest by
extending the interest payment period of the Debt Securities for a period not
exceeding 20 consecutive quarterly periods (the "Extension Period"), during
which Extension Period no interest shall be due and payable; PROVIDED, that
no Extension Period shall be initiated while accrued interest with respect to
prior, completed Extension Periods is unpaid, and PROVIDED, further that no
Extension Period shall extend beyond the maturity of the Debt Securities. In
the event that the Corporation exercises this right, then during any
Extension Period (a) the Corporation shall not declare or pay dividends on,
make a distribution with respect to, or redeem, purchase or acquire, or make
a liquidation payment with respect to, any of its capital stock or rights to
acquire such capital stock (other than (i) purchases or acquisitions of
shares of any such capital stock or rights to acquire such capital stock in
connection with the satisfaction by the Corporation of its obligations under
any employee benefit plans, (ii) as a result of a reclassification of the
Corporation's capital stock or rights to acquire such capital stock or the
exchange or conversion of one class or series of the Corporation's capital
stock or rights to acquire such capital stock for another class or series of
the Corporation's capital stock or rights to acquire such capital stock,
(iii) the purchase of fractional interests in shares of the Corporation's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged or (iv) dividends
and distributions made on the Corporation's capital stock or rights to
acquire such capital stock with the Corporation's capital stock or rights to
acquire such capital stock), (b) the Corporation shall not make any payment
of interest, principal or premium, if any, on or repay, repurchase or redeem
any debt securities issued by the Corporation that rank pari passu with or
junior to such Debt Securities and (c) the Corporation shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Securities Guaranties, as defined in the Declaration). Prior to the
termination of any such Extension Period in respect of the Debt Securities,
the Corporation may further extend the interest payment period; provided that
each such Extension Period in respect of the Debt Securities, together with
all such previous and further extensions thereof, may not exceed 20
consecutive quarterly periods or extend beyond the Maturity Date. Upon the
termination of any Extension Period and the payment of all amounts then due,
the Corporation may commence a new Extension Period, subject to the above
requirements. The Corporation may prepay at any time all or any portion of
the interest accrued during an Extension Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) At the time the Corporation initiates an Extension Period, the
Corporation shall give written notice to the Regular Trustees and the holders
of the Debt Securities of its initiation of
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such Extension Period at least one Business Day before the Interest Payment
Date with respect to interest payments the payment of which is being deferred.
ARTICLE V
EXPENSES
SECTION 5.1. EXPENSES.
In connection with the offering, sale and issuance of the Debt
Securities and in connection with the sale of any Trust Securities by the
Trust, the Corporation, in its capacity as borrower with respect to the Debt
Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of Debt Securities of any series;
(b) pay all costs and expenses of the Trustee hereunder and of the
Trust (including, but not limited to, costs and expenses relating to the
organization of such Trust, the offering, sale and issuance of the Trust
Securities, the fees and expenses of the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets of the Trust);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or assets of the Trust) and all liabilities, costs
and expenses with respect to such taxes of the Trust.
SECTION 5.2. DELAWARE TRUSTEE.
Upon termination of the Declaration or the removal or resignation of the
Delaware Trustee, the Corporation shall pay to the Delaware Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBT SECURITY
The Debt Securities are to be substantially in the following form and
are expressly made a part of this Indenture:
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(FACE OF DEBT SECURITY)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
(THE "SECURITIES LAWS"). THESE SECURITIES (AND ANY SECURITIES INTO WHICH
THEY MAY BE CONVERTED) MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF REGISTRATION UNDER APPLICABLE SECURITIES LAWS,
OR THE AVAILABILITY OF AN EXEMPTION THEREFROM. THIS CERTIFICATE WILL NOT BE
TRANSFERRED ON THE BOOKS OF THE CORPORATION OR ANY TRANSFER AGENT ACTING ON
BEHALF OF THE CORPORATION EXCEPT UPON THE RECEIPT OF AN OPINION OF COUNSEL,
SATISFACTORY TO THE CORPORATION, THAT THE PROPOSED TRANSFER IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF ALL APPLICABLE SECURITIES LAWS, OR THE
RECEIPT OF EVIDENCE, SATISFACTORY TO THE CORPORATION, THAT THE PROPOSED
TRANSFER IS THE SUBJECT OF AN EFFECTIVE REGISTRATION STATEMENT UNDER ALL
APPLICABLE SECURITIES LAWS.
NO. 01 PRINCIPAL AMOUNT $__________
REPUBLIC BANCORP, INC.
8.5% SUBORDINATED DEFERRABLE INTEREST DEBT SECURITY DUE 2027
REPUBLIC BANCORP, INC., a Kentucky corporation (the "Corporation"), which
term includes any successor corporation under the Indenture hereinafter
referred to, for value received, hereby promises to pay to Republic Capital
Trust, a Delaware business trust, or registered assigns, the principal sum of
Ten Million Dollars ($10,000,000) on April 1, 2027, and to pay interest on
said principal sum from [THE DATE OF ISSUE], 1997, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral
as set forth herein) in arrears on January 1, April 1, July 1 and October 1
of each year commencing April 1, 1997, at the rate of Eight and 5/10 Per Cent
(8.5%) per annum until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, 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 same rate
per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which interest is
payable on this Debt Security is not a Business Day, then payment of interest
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 is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date. The interest 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 Debt Security (or one or
more Predecessor Securities, as defined in said Indenture) is registered at
the close of business on the Record Date for such interest installment, which
shall be the close of business on the 15th Business Day next preceding such
Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered
holders on such Record Date and may be paid to the Person in whose name this
Debt Security (or one or more Predecessor Securities) is registered at the
close of business on a special record date to be fixed by the Corporation for
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the payment of such defaulted interest, notice whereof shall be given to the
registered holders of Debt Securities not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful manner,
all as more fully provided in the Indenture. The principal of (and premium,
if any) and the interest on this Debt Security shall be payable at the office
or agency of the Corporation (or other paying agent appointed by the
Corporation) maintained for that purpose in any coin or currency of the
United States of America that at the time of payment is legal tender for
payment of public and private debts; PROVIDED, however, that payment of
interest may be made at the option of the Corporation by check mailed to the
registered holder at such address as shall appear in the Security Register.
The indebtedness evidenced by this Debt Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debt Security is
issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debt Security, by accepting the same, agrees to and shall be
bound by the provisions of the Indenture. Each holder hereof, by his or her
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
The provisions of this Debt Security are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed.
REPUBLIC BANCORP, INC. Dated: __________, 1997
By:_____________________________________
Name: __________________________________
Title:__________________________________
Attest__________________________________
Name:___________________________________
Title:__________________________________
[Text of Reverse Side]
This Debt Security of the Corporation is issued under and pursuant to
the Indenture between the Corporation and Steven E. Trager, as trustee, dated
February 5, 1997 (the "Indenture"), to which Indenture reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Corporation and the holders of the
Debt Securities (referred to herein as the "Debt Securities") of which this
Debt Security is a part. The summary of the terms of this Debt Security
contained herein does not
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purport to be complete and is qualified by reference to the Indenture. The
Debt Securities are limited in aggregate principal amount as specified in
said Indenture.
The Corporation shall have the right to redeem this Debt Security at the
option of the Corporation, in whole or in part at any time on or after April
1, 2002 (an "Optional Redemption"), at the redemption price (the "Redemption
Price") equal to the principal amount being redeemed, plus accrued and unpaid
interest to the redemption date which shall be paid prior to 12:00 noon,
Louisville, Kentucky time, on the date of such redemption or at such earlier
time as the Corporation determines. In addition, the Corporation has the
right to redeem the Debt Securities, in whole or in part, at any time at the
Redemption Price upon the occurrence, and during the continuation, of any of
the following events: (i) the Republic Trustees shall have received an
opinion of independent counsel experienced in practice under the federal
securities laws that there is more than an insubstantial risk that the Trust
is or will be considered an Investment Company or (ii) the Board of Governors
of the Federal Reserve System or a Federal Reserve Bank (the "Federal
Reserve") shall have advised the Debt Issuer that the Preferred Securities
are not or will be considered not to be "Tier 1 Capital" of the Debt Issuer
under the regulations, policies and guidelines of the Federal Reserve or
(iii) a Tax Event. Any redemption pursuant to this paragraph will be made
upon not less than 10 days nor more than 60 days notice, at the Redemption
Price. If the Debt Securities are only partially redeemed by the Corporation
pursuant to an Optional Redemption, the Debt Securities will be redeemed pro
rata or by lot or by any other method utilized by the Corporation.
On the terms and subject to the conditions set forth in the Indenture,
the Holder of the Debt Securities has the right, exercisable at any time on
or before 5:00 p.m. (Louisville, Kentucky time) on the Business Day
immediately preceding the date of repayment of such Securities, whether at
maturity or upon redemption, to convert such Securities into fully paid and
nonassessable whole shares of Republic Common Stock at a conversion rate of 5
shares of Republic Common Stock for each $100 in aggregate principal amount
of Securities, subject to adjustment under certain circumstances, as provided
in the Indenture.
In the event of redemption of this Debt Security in part only, a new
Debt Security or Debt Securities for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debt Securities may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Corporation, with the
consent of the holders of not less than a majority in aggregate principal
amount of the Debt Securities affected at the time outstanding, as specified
in the Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debt Securities; provided,
however, that no such supplemental indenture shall among other things, (i)
extend the fixed maturity of any Debt Securities, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without
the consent of the holder
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of each Debt Security so affected, or (ii) reduce, the aforesaid percentage
of Debt Securities, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holder of each Debt
Security then outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount
of the Debt Securities at the time outstanding affected thereby, on behalf of
all of the holders of the Debt Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any of
the Debt Securities. Any such consent or waiver by the registered holder of
this Debt Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and
owners of this Debt Security and of any Debt Security issued in exchange
herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debt Security.
No reference herein to the Indenture and no provision of this Debt
Security or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of and
interest on this Debt Security at the time and place and at the rate and in
the money herein prescribed.
The Corporation shall have the right at any time during the term of the
Debt Securities and from time to time to extend the interest payment period
of the Debt Securities for up to 20 consecutive quarterly periods (each, an
"Extension Period") as provided in the Indenture. During the Extension
Period no interest shall be due and payable; provided that no Extension
Period may extend beyond the Maturity Date. To the extent permitted by
applicable law, interest on the Debt Securities, the payment of which has
been deferred, will bear interest thereon compounded quarterly. At the end
of an Extension Period, the Corporation shall pay all interest accrued and
unpaid on the Debt Securities, including any Additional Interest and
Compounded Interest, that shall be payable.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, this Debt Security is transferable by the registered
holder hereof on the Debt Security Register of the Corporation, upon
surrender of this Debt Security for registration of transfer at the office or
agency of the Corporation in Louisville, Kentucky, accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation
duly executed by the registered holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debt Securities of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will
be made for any such transfer, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this Debt
Security, the Corporation may deem and treat the registered holder hereof as
the absolute owner hereof for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and the Corporation shall not be affected by any
notice to the contrary.
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No recourse shall be had for the payment of the principal or premium on,
if any or the interest on this Debt Security, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Corporation or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration
for, the issuance hereof, expressly waived and released.
The Debt Securities are issuable only in registered form without coupons
in denominations of $100 and any integral multiple thereof. All terms used
in this Debt Security that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF KENTUCKY SHALL GOVERN THE INDENTURE
AND THE DEBT SECURITIES WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
NOTICE OF CONVERSION
To: Republic Bancorp, Inc.
The undersigned owner of this Security hereby irrevocably exercises
the option to convert this Security, or the portion below designated, into
Class A Common Stock (the "Common Stock") of Republic Bancorp, Inc. (the
"Company") in accordance with the terms of the Indenture referred to in the
Security, between the Company and Steven E. Trager, as Trustee, and directs
that the shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in
the assignment below. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto.
Date:_______________
Principal Amount of Securities to be converted ($100 or integral multiples
thereof): _______________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
(Signed exactly as your name appears on the Security) (for conversion only)
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Please print or typewrite name and address, including zip code, and social
security or other identifying number.
____________________________________________________
____________________________________________________
____________________________________________________
Signature Guarantee:*_______________________
*Signature must be guaranteed by an "eligible institution," that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Security Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
ARTICLE VII
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 7.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Corporation covenants and agrees for the benefit of holders of Debt
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Debt Securities
at the place, at the respective times and in the manner provided in such Debt
Securities, except with respect to its right to extend such payments as
described herein.
SECTION 7.02. COVENANTS AS TO THE TRUST.
In the event Debt Securities are issued to the Trust, for so long as
such Trust Securities remain outstanding, the Corporation will (i) maintain
100% direct ownership of the Common Securities of the Trust, (ii) use its
reasonable efforts to cause the Trust (a) to remain a business trust, except
in connection with a distribution of Debt Securities, the redemption of all
of the Trust Securities of the Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of the Trust, and (b) to
otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes, and
(iii) use its reasonable efforts to cause each holder of Trust Securities to
be treated as owning an undivided beneficial interest in the Debt Securities.
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ARTICLE VIII
REMEDIES OF THE SECURITYHOLDERS
IN EVENT OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT.
The following Events of Default with respect to Debt Securities or such
other events as may be established with respect to the Debt Securities shall
be "Events of Default" with respect to Debt Securities:
(a) The Corporation defaults in the payment of any interest upon any
Debt Securities when it becomes due and payable, and continuance of such
default for a period of ten (10) days; provided, however, that a valid
extension of an interest payment period by the Corporation in accordance with
the terms of this Indenture shall not constitute a default in the payment of
interest for this purpose; or
(b) The Corporation defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities as and when the
same shall become due and payable either at maturity, upon redemption, by
declaration or otherwise; provided, however, that a valid extension of the
maturity of such Debt Securities in accordance with the terms of this
Indenture shall not constitute a default in the payment of principal or
premium, if any; or
(c) The Corporation defaults in the performance, or breach, of any of
its covenants or warranties in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Corporation by the Trustee or by the holders of at
least 25% in principal amount of the outstanding Debt 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
(d) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Corporation in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Corporation or for any
substantial part of its property, or ordering the winding-up or liquidation
of its affairs and such decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or
(e) The Corporation shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due; or
(f) As to Debt Securities issued to the Trust, such Trust shall have
voluntarily or involuntarily dissolved, wound-up its business or otherwise
terminated its existence except in connection with (i) the distribution of
the Debt Securities to holders of such Trust Securities in
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liquidation of their interests in the Trust, (ii) the redemption of all of
the outstanding Trust Securities of the Trust or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of the
Trust.
If an Event of Default occurs and is continuing with respect to the Debt
Securities, then, and in each and every such case, unless the principal of
all of the Debt Securities shall have already become due and payable, the
Trustee or the holders of not less than 25% in aggregate principal amount of
the Debt Securities then outstanding hereunder, by notice in writing to the
Corporation, may declare the entire principal of all Debt Securities and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
SECTION 8.02. TRUSTEE MAY ENFORCE CLAIMS.
All rights of action and claims under this Indenture or the Debt
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the holders of the Debt
Securities in respect of which such judgment has been recovered.
SECTION 8.03. APPLICATION OF MONEYS COLLECTED.
Any moneys collected by the Trustee or the holders of the Debt
Securities following an Event of Default shall be applied in the following
order:
First: To the payment of costs and expenses of collection and reasonable
compensation to the Trustee and the holders of the Debt Securities, their
agents, attorneys and counsel, and of all other expenses and liabilities
incurred, and all advances made, by them except as a result of their
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Corporation if
and to the extent required herein;
Third: In case the principal of the outstanding Debt Securities in
respect of which moneys have been collected shall not have become due and be
unpaid, to the payment of the amounts then due and unpaid upon Debt
Securities for principal (and premium, if any), and interest on the Debt
Securities, in respect of which or for the benefit of which money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due on such Debt Securities for principal (and premium, if any)
and interest, respectively; and
Fourth: The balance, if any, to the Corporation.
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SECTION 8.04. REMEDIES CUMULATIVE AND CONTINUING.
Except as otherwise provided herein, all powers and remedies given by
this Article to the Securityholders or the Trustee shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and remedies available to the holders of the Debt Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Debt Securities, and no delay or omission of the Trustee
or any holder of any of the Debt Securities to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and every power and remedy given
by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by
the Trustee and the Securityholders.
SECTION 8.05. CONTROL BY HOLDERS.
The holders of a majority in principal amount of the Debt Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 8.06. ENFORCEMENT BY HOLDERS OF PREFERRED SECURITIES.
If an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Corporation to pay interest or principal
on the Debt Securities on the date such interest or principal is otherwise
payable, the Corporation acknowledges that, in such event, a holder of
Preferred Securities may institute a Direct Action for the payment on or
after the respective due date specified in the Debt Securities. The
Corporation may not amend this Indenture to remove the foregoing right to
bring a Direct Action (or to change this Section) without the prior written
consent of all the holders of Preferred Securities. Notwithstanding any
payment made to such holder of Preferred Securities by the Corporation in
connection with a Direct Action, the Corporation shall remain obligated to
pay the principal of and interest on the Debt Securities (including
Additional Payments, if any) held by the Trust or the Property Trustee and
the Corporation shall be subrogated to the rights of the holder of such
Preferred Securities with respect to payments on the Preferred Securities to
the extent of any payments made by the Corporation to such holder in any
Direct Action. The holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debt
Securities.
SECTION 8.07. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in principal amount of the Debt
Securities may on behalf of the holders of all the Debt Securities waive any
past default hereunder and its consequences, except a default in the payment
of the principal of or interest (including Additional Payments, if
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any) on any Debt Security (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 Trustee).
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.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
The Board of Directors of the Corporation may adopt an indenture
supplemental hereto, without the consent of the Securityholders, for one or
more of the following purposes:
(a) evidence the succession of another corporation to the Corporation,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Corporation, pursuant to
Article Ten hereof,
(b) to add to the covenants of the Corporation such further covenants,
restrictions or conditions for the protection of the holders of Debt
Securities as such Board of Directors shall consider to be for the protection
of the holders of such Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional covenants,
restrictions or conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture
as herein set forth; provided, however, that in respect of any such
additional covenant, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Securityholders upon such default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; provided that any such action shall not adversely affect the
interests of the holders of the Debt Securities;
(e) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(f) to provide for the issuance of and establish the form of the Debt
Securities, to establish the form of any certifications required to be issued
pursuant to the terms of this Indenture or the Debt Securities, or to add to
the rights of the holders of Debt Securities.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities at the time outstanding, the Board of
Directors of the Corporation may from
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time to time and at any time adopt a supplemental indenture or indentures for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the Debt
Securities so affected; provided, however, that no such supplemental
indenture shall without the consent of the holders of each Debt Security then
outstanding and affected thereby (i) extend the fixed maturity of any Debt
Security or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof or any premium thereon, or
reduce any amount payable on redemption thereof or make the principal thereof
or any interest or premium thereon payable in any coin or currency other than
that provided in the Debt Securities, or impair or affect the right of any
Securityholder to institute suit for payment thereof or the right of
repayment, if any, at the option of the holder, without the consent of the
holder of each Debt Security so affected, or (ii) reduce the aforesaid
percentage of Debt Securities the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of each
Debt Security then affected; provided, further, that if the Debt Securities
are held by the Trust, such supplemental indenture shall not be effective
until the holders of a majority in liquidation amount of Trust Securities
shall have consented to such supplemental indenture; provided further, that
if the consent of the holder of each outstanding Debt Security is required,
such supplemental indenture will not be effective until each holder of the
Trust Securities of the Trust shall have consented to such supplemental
indenture.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. CORPORATION MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Debt Securities
shall prevent any consolidation or merger of the Corporation with or into any
other corporation or corporations (whether or not affiliated with the
Corporation), or successive consolidations or mergers in which the
Corporation, or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the
property of the Corporation, or its successor or successors as an entirety,
or substantially as an entirety, to any other corporation (whether or not
affiliated with the Corporation, or its successor or successors) authorized
to acquire and operate the same; provided, however, the Corporation hereby
covenants and agrees that, upon any such consolidation, merger, sale,
conveyance, transfer or other disposition, the due and punctual payment, in
the case of the Corporation, of the principal of (premium, if any) and
interest on all of the Debt Securities in accordance with their terms
according to their tenor and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with respect thereto to
be kept or performed by the Corporation, shall be expressly assumed, by
supplemental indenture by the entity formed by such consolidation, or into
which the Corporation, shall have been merged, or by the entity which shall
have acquired such property.
SECTION 10.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED.
In case of any such consolidation, merger, sale, conveyance, transfer or
other disposition and upon the assumption by the successor corporation, by
supplemental indenture, of, in the case of the Corporation, the due and
punctual payment of the principal of and premium, if any, and interest on all
of the Debt Securities and the due and punctual performance and observance of
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all of the covenants and conditions of this Indenture to be performed or
observed by the Corporation, such successor corporation shall succeed to and
be substituted for the Corporation, with the same effect as if it had been
named herein as the Corporation, and thereupon the predecessor corporation
shall be relieved of any further liability or obligation hereunder or upon
the Debt Securities. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the
Corporation, any or all of the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Corporation. All the Debt
Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debt Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Debt Securities had been issued at the date of the execution hereof.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. DISCHARGE OF INDENTURE.
When (a) the Corporation shall cancel all Debt Securities (other than
any Debt Securities which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided herein), or (b) all the Debt
Securities not theretofore canceled shall have become due and payable, or are
by their terms to become due and payable within one year or are to be called
for redemption within one year, and the Corporation shall deposit in trust,
funds sufficient to pay at maturity or upon redemption all of the Debt
Securities (other than any Debt Securities which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided herein)
not theretofore canceled, including principal and premium, if any, and
interest due or to become due to such date of maturity or redemption date, as
the case may be, then this Indenture shall cease to be of further effect
except for such provisions as are necessary in order to accomplish the
orderly and final payment of the Debt Securities.
SECTION 11.02. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST.
All moneys deposited pursuant to Section 7.01 shall be held in trust and
applied to the payment, either directly or through any paying agent
(including the Corporation if acting as its own paying agent), to the holders
of the particular Debt Securities for the payment of which such moneys or
U.S. Government Obligations have been deposited in trust, of all sums due and
to become due thereon for principal, premium, if any, and interest.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. INDENTURE AND DEBT SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of or premium, if any, or
interest on any Debt Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Corporation in this Indenture or in any supplemental
indenture or in any such Debt Security, or because of the creation of any
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indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Corporation or of any successor corporation of the Corporation, either
directly or through the Corporation or any successor corporation of the
Corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Debt Securities.
ARTICLE XIII
CONVERSION OF DEBT SECURITIES
SECTION 13.01. CONVERSION RIGHTS.
Subject to and upon compliance with the provisions of this Article, the
Debt Securities are convertible, at the option of the holder, at any time on
or before 5:00 p.m. (Louisville, Kentucky time) on the Business Day
immediately preceding the date of repayment of such Debt Securities, whether
at maturity or upon redemption, into fully paid and nonassessable shares of
Common Stock of the Corporation at a conversion rate of 5 shares of Common
Stock for each $100 in aggregate principal amount of Debt Securities (equal
to a conversion price of $20 per share of Common Stock), subject to
adjustment as described in this Article XIII. A holder of Securities may
convert any portion of the principal amount of the Debt Securities 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) obtained by dividing
the principal amount of the Debt Securities to be converted by such
conversion price. In case a Debt Security or portion thereof is called for
redemption, such conversion right in respect of the Debt Security or portion
so called shall expire at 5:00 p.m. (Louisville, Kentucky time) on the
Business Day immediately preceding the corresponding Redemption Date, unless
the Corporation defaults in making the payment due upon redemption.
SECTION 13.02. CONVERSION PROCEDURES.
(a) To convert all or a portion of the Debt Securities, the holder
thereof shall deliver to the Conversion Agent an irrevocable notice of
conversion setting forth the principal amount of Debt Securities to be
converted, together with the name or names, if other than the holder, in
which the shares of Common Stock should be issued upon conversion and
surrender to the Conversion Agent the Debt Securities to be converted, duly
endorsed or assigned to the Corporation or in blank. In addition, a holder of
Trust Securities may exercise its right under the Declaration to convert such
Trust Securities into Common Stock by delivering to the Conversion Agent an
irrevocable Notice of Conversion setting forth the information called for by
the preceding sentence and directing the Conversion Agent (i) to exchange
such Trust Security for a portion of the Debt Securities held by the Trust
(at an exchange rate of $100 liquidation amount of Debt Securities for each
Trust Security) and (ii) to immediately convert such Debt Securities, on
behalf of such holder, into Common Stock of the Corporation pursuant to this
Article XIII and surrendering such Trust Securities, duly endorsed or
assigned to the Corporation or in blank. So long as any Trust Securities are
outstanding, the Trust shall not convert any Debt Securities except pursuant
to a Notice of Conversion delivered to the Conversion Agent by a holder of
Trust Securities.
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In the case of any Debt Security which is converted after any Record
Date and on or prior to the next succeeding Interest Payment Date, interest
whose Stated Maturity is on such Interest Payment Date shall be payable on
such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at 5:00 p.m. (Louisville, Kentucky time) on such Record Date.
Except as otherwise expressly provided in this section, interest whose Stated
Maturity is after the date of conversion of such Debt Security shall not be
payable, and the Corporation shall not make nor be required to make any other
payment, adjustment or allowance with respect to accrued but unpaid interest
on the Debt Securities being converted, which shall be deemed to be paid in
full. Subject to any right of the holder of such Debt Security or any
Predecessor Security to receive interest as provided in this section, the
Corporation's delivery upon conversion of the fixed number of shares of
Common Stock into which the Debt Securities are convertible (together with
the cash payment, if any, in lieu of fractional shares) shall be deemed to
satisfy the Corporation's obligation to pay the principal amount at Maturity
of the portion of Debt Securities so converted and any unpaid interest
accrued on such Debt Securities at the time of such conversion. If any Debt
Security called for redemption is converted (and any interest payable in
respect of such converted Debt Security pursuant to this section shall have
been paid in full), any money deposited with the Trustee or with any paying
agent or so segregated and held in trust for the redemption of such Debt
Security shall (subject to any right of the holder of such Debt Security or
any Predecessor Security to receive interest as provided in this section) be
paid to the Corporation or, if then held by the Corporation, shall be
discharged from such trust.
If a Notice of Conversion is delivered after the Record Date and prior
to the subsequent Interest Payment Date, the holder will be entitled to
receive the interest payable on the subsequent Interest Payment Date on the
portion of Debt Securities to be converted notwithstanding the conversion
thereof prior to such Interest Payment Date. If a Notice of Conversion is
delivered during an Extension Period and after the Trust (or, after
liquidation of the Trust, the Trustee) has mailed a notice of redemption with
respect to the Debt Securities that are converted, all accrued and unpaid
interest on such Debt Securities (including Compounded Interest, if any) to
the most recent Interest Payment Date prior to the date of such conversion,
whether or not such Interest Payment Date falls in such Extension Period (or,
if the Notice of Conversion is delivered (A) during an Extension Period, (B)
on or prior to an Interest Payment Date as to which the payment of interest
is to be deferred as a result of such Extension Period and (C) after the
Record Date for the Interest Payment Date referred to in clause (B) above,
all accrued and unpaid interest on such Debt Securities (including Compounded
Interest, if any) to such Interest Payment Date) shall be distributed to the
holder who converts such Debt Securities, which payment shall be made on the
redemption date fixed for redemption. Except as otherwise set forth above in
this section, in the case of any Debt Security which is converted, interest
whose Stated Maturity is after the date of conversion of such Debt Security
shall not be payable, and the Corporation shall not make nor be required to
make any other payment, adjustment or allowance with respect to accrued but
unpaid interest on the Debt Securities being converted, which shall be deemed
to be paid in full. If any Debt Security called for redemption is converted,
any money deposited with the Trustee or with any paying agent or so
segregated and held in trust for the redemption of such Debt Security shall
(subject to any right of the holder of such Debt Security or any Predecessor
Security to receive interest as provided in this section) be paid to the
Corporation or, if then held by the Corporation, shall be discharged from
such trust.
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Each conversion shall be deemed to have been effected immediately prior
to 5:00 p.m. (Louisville, Kentucky time) on the day on which the Notice of
Conversion was received (the "Conversion Date") by the Conversion Agent from
the holder or from a holder of the Preferred Securities effecting a
conversion thereof pursuant to its conversion rights under the Declaration,
as the case may be. The Person or Persons entitled to receive the Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such Common Stock as of the Conversion Date. As
promptly as practicable on or after the Conversion Date, the Corporation
shall issue and deliver at the office of the Conversion Agent, unless
otherwise directed by the holder in the Notice of Conversion, a certificate
or certificates for the number of full shares of Common Stock issuable upon
such conversion, together with the cash payment, if any, in lieu of any
fraction of any share to the Person or Persons entitled to receive the same.
The Conversion Agent shall deliver such certificate or certificates to such
Person or Persons.
(b) No fractional shares of Common Stock will be issued as a result of
conversion, but in lieu thereof, the Corporation shall pay to the Conversion
Agent a cash adjustment based on the last reported sale price of the Common
Stock on the Conversation Date (or if such date is not a trading date, on the
next trading date) if the Common Stock is then traded on a national
securities exchange or is subject to quotation on an inter-dealer automated
quotation system, or otherwise based upon the conversion price. The
Conversion Agent in turn will make such payment, if any, to the holder of the
Debt Securities or the holder of the Trust Securities so converted.
(c) In the event of the conversion of any Debt Security in part only, a
new Debt Security or Debt Securities for the unconverted portion thereof will
be issued in the name of the holder thereof upon the cancellation thereof.
(d) In effecting the conversion transactions described in this Section,
the Conversion Agent is acting as agent of the holders of Trust Securities
(in the exchange of Trust Securities for Debt Securities) and as agent of the
holders of Debt Securities (in the conversion of Debt Securities into Common
Stock), as the case may be, directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange Debt
Securities held by the Trust from time to time for Trust Securities in
connection with the conversion of such Trust Securities in accordance with
this Article XIII and (ii) to convert all or a portion of the Debt Securities
into Common Stock and thereupon to deliver such shares of Common Stock in
accordance with the provisions of this Article XIII and to deliver to the
Property Trustee a new Debt Security or Debt Securities for any resulting
unconverted principal amount. If the Property Trustee no longer holds Debt
Securities, the Trustee shall act as Conversion Agent hereunder.
SECTION 13.03. CONVERSION PRICE ADJUSTMENTS.
The conversion price shall be subject to adjustment (without
duplication) from time to time as follows:
(a) In case the Corporation shall, while any of the Debt Securities are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of capital stock of the Corporation, (ii) subdivide
its outstanding shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares or (iv) issue by
reclassification of its shares of Common Stock any shares of capital stock of
the Corporation, the conversion price and the kind and amount of capital
stock that may be acquired upon conversion
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as in effect immediately prior to such action shall be adjusted so that the
holder of any Debt Securities thereafter surrendered for conversion shall be
entitled to receive the number of shares of capital stock of the Corporation
which he would have owned immediately following such action had such Debt
Securities been converted immediately prior thereto. An adjustment made
pursuant to this Section shall become effective immediately after the record
date in the case of a dividend or other distribution and shall become
effective immediately after the effective date in case of a subdivision,
combination or reclassification (or immediately after the record date if a
record date shall have been established for such event). If, as a result of
an adjustment made pursuant to this Section, the holder of any Debt Security
thereafter surrendered for conversion shall become entitled to receive shares
of two or more classes or series of capital stock of the Corporation, the
Board of Directors (whose determination shall be conclusive and shall be
described in a Board Resolution filed with the Trustee) shall determine the
allocation of the adjusted conversion price between or among shares of such
classes or series of capital stock.
(b) No adjustment in the conversion price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any adjustments which by reason of
this Section are not required to be made shall be carried forward and taken
into account in determining whether any subsequent adjustment shall be
required.
SECTION 13.04. RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE OF
ASSETS.
In the event that the Corporation shall be a party to any transaction
(including without limitation (a) any recapitalization or reclassification of
the 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 as a result of a subdivision
or combination of the Common Stock), (b) any consolidation of the Corporation
with, or merger of the Corporation into, any other Person, any merger of
another Person into the Corporation (other than a merger which does not
result in a reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Corporation), (c) any sale,
transfer or lease of all or substantially all of the assets of the
Corporation or (d) any compulsory share exchange pursuant to which the Common
Stock is converted into the right to receive other securities, cash or other
property, then lawful provision shall be made as part of the terms of such
transaction whereby the holder of each Debt Security then outstanding shall
have the right thereafter to convert such Debt Security only into the kind
and amount of securities, cash or other property receivable upon consummation
of such transaction by a holder of the number of shares of Common Stock of
the Corporation into which such Debt Security could have been converted
immediately prior to such transaction.
The Corporation or the Person formed by such consolidation or
resulting from such merger or which acquired such assets or which acquires
the Corporation's shares, as the case may be, shall make provision in its
certificate or articles of incorporation or other constituent document to
establish such right. Such certificate or articles of incorporation or other
constituent document shall provide for adjustments which, for events
subsequent to the effective date of such certificate or articles of
incorporation or other constituent document, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article XIII. The
above provisions shall similarly apply to successive transactions of the
foregoing type.
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SECTION 13.05. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the conversion price is adjusted as herein provided:
(a) the Corporation shall compute the adjusted conversion price and
shall prepare a certificate signed by the chief financial officer or the
treasurer of the Corporation setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed with the Trustee and the
Conversion Agent; and
(b) notice stating the conversion price has been adjusted and
setting forth the adjusted conversion price shall as soon as practicable be
mailed by the Corporation to all record holders of Trust Securities and the
Debt Securities at their last addresses as they appear upon the transfer
books of the Corporation and the Trust.
SECTION 13.06. TRUSTEE NOT RESPONSIBLE FOR DETERMINING CONVERSION PRICE OR
ADJUSTMENTS.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any holder of any Debt Security to determine
whether any facts exist which may require any adjustment of the conversion
price, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any Conversion Agent shall be accountable with respect to the
validity or value (or the kind of account) of any shares of Common Stock or
of any securities or property, which may at any time be issued or delivered
upon the conversion of any Debt Security; and neither the Trustee nor any
Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the
Corporation to make any cash payment or to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property
upon the surrender of any Debt Security for the purpose of conversion, or,
except as expressly herein provided, to comply with any of the covenants of
the Corporation contained herein.
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. AGREEMENT TO SUBORDINATE.
The Corporation covenants and agrees, and each holder of Debt Securities
issued hereunder and under any supplemental indenture or by any resolutions
by the Boards of Directors of the Corporation ("Additional Provisions") by
such Securityholder's acceptance thereof likewise covenants and agrees, that
all Debt Securities shall be issued subject to the provisions of this
Article; and each holder of a Debt Security, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment by the Corporation of the principal of, premium, if any, and
interest on all Debt Securities issued hereunder and under any Additional
Provisions shall, to the extent and in the
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manner hereinafter set forth, be subordinated and junior in right of payment
to the prior payment in full of all Senior Indebtedness of the Corporation,
whether outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article shall prevent the occurrence of any default
or Event of Default hereunder.
SECTION 14.02. DEFAULT ON SENIOR INDEBTEDNESS.
In the event and during the continuation of any default by the
Corporation in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness of the Corporation, or in the event
that the maturity of any Senior Indebtedness of the Corporation, as the case
may be, has been accelerated because of a default, then, in either case, no
payment shall be made by the Corporation, with respect to the principal of,
or premium, if any, or interest on the Debt Securities.
SECTION 14.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment by the Corporation or distribution of assets of the
Corporation of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Corporation, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness of the Corporation, shall first be paid in full,
or payment thereof provided for in money in accordance with its terms, before
any payment is made by the Corporation, on account of the principal (and
premium, if any) or interest on the Debt Securities; and upon any such
dissolution or winding-up or liquidation or reorganization, any payment by
the Corporation, or distribution of assets of the Corporation of any kind or
character, whether in cash, property or securities, to which the
Securityholders would be entitled to receive from the Corporation, except for
the provisions of this Article, shall be paid by the Corporation, or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Securityholders if received by
them or it, directly to the holders of Senior Indebtedness of the Corporation
(pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Corporation) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear,
to the extent necessary to pay such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the Securityholders.
SECTION 14.04 SUBROGATION.
Subject to the payment in full of all Senior Indebtedness of the
Corporation, the Securityholders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Corporation, applicable to such Senior
Indebtedness until the principal of, and premium, if any, and interest on the
Debt Securities shall have been paid in full.
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Nothing contained in this Article or elsewhere in this Indenture, any
Additional Provisions or in the Debt Securities is intended to or shall
impair, as between the Corporation, its creditors other than the holders of
Senior Indebtedness of the Corporation, and the holders of the Debt
Securities, the obligation of the Corporation, which is absolute and
unconditional, to pay to the holders of the Debt Securities the principal of
(and premium, if any) and interest on the Debt 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 Debt
Securities and creditors of the Corporation, other than the holders of Senior
Indebtedness of the Corporation, nor shall anything herein or therein prevent
the holder of any Debt Security from exercising all remedies otherwise
permitted by applicable law upon default under the Indenture, subject to the
rights, if any, under this Article of the holders of such Senior Indebtedness
in respect of cash, property or securities of the Corporation, received upon
the exercise of any such remedy.
Upon any payment or distribution of assets of the Corporation referred
to in this Article, the Securityholders shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or
distribution, delivered to the Securityholders, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Corporation, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 14.05. SUBORDINATION MAY NOT BE IMPAIRED.
No right of any present or future holder of any Senior Indebtedness of
the Corporation 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 Corporation, or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Corporation, with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Corporation may, at any time and
from time to time, without the consent of or notice to the Securityholders,
without incurring responsibility to the Securityholders and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable
in any manner for the collection of such Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Corporation, and
any other Person.
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ARTICLE XV
THE TRUSTEE
SECTION 15.01. CERTAIN DUTIES AND RESPONSIBILITIES.
No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if it 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 Indenture or indemnity reasonably satisfactory to the Trustee against
such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 15.01.
SECTION 15.02. NOTICE OF DEFAULTS.
The Trustee shall give the holders notice of any default hereunder,
provided, however, that except in the case of any default of the character
specified in Section 8.01(c), no such notice to holders shall be given until
at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 15.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 15.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a written request signed in the name of the
Corporation by its Chairman, President, or a Vice President, and delivered to
the Trustee, and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice 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 reasonable security or indemnity
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against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to reasonable examination of the books, records and
premises of the Corporation, personally or by agent or attorney;
(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; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith, without negligence or willful
misconduct, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 15.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Debt Securities shall be taken
as the statements of the Corporation, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Debt Securities.
The Trustee shall not be accountable for the use or application by the
Corporation of the Debt Securities or the proceeds thereof.
SECTION 15.05. 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 Corporation.
SECTION 15.06. COMPENSATION AND REIMBURSEMENT.
The Corporation agrees
(a) to pay to the Trustee from time to time such compensation as the
Corporation and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, fees, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
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(c) to indemnify the Trustee and any predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, 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.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 8.01(d) or Section 8.01(e), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 15.07. 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 under Section 15.08.
(b) The Trustee may resign at any time by giving written notice thereof
to the Corporation. 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 any court
of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by act of the holders of a
majority in principal amount of the Debt Securities, delivered to the Trustee
and to the Corporation. 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 any
court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time 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 such case, (A) the
Corporation by Board Resolution may remove the Trustee, or (B) any holder who
has been a bona fide holder of a Debt 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 and the appointment of
a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Corporation, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by
act of the holders of a majority in principal amount of the Debt Securities
delivered to the Corporation and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee and supersede the successor Trustee appointed by the
Corporation. If no successor Trustee shall have been so appointed by the
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Corporation or the holders and accepted appointment in the manner hereinafter
provided, any holder who has been a bona fide holder of a Debt Security 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.
SECTION 15.08. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Corporation 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; provided, that on request
of the Corporation 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. Upon request
of any such successor Trustee, the Corporation shall execute any and all
instruments required to more fully and certainly vest in and confirm to such
successor Trustee all such rights, powers and trusts.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01. SUCCESSORS.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Corporation shall bind to successors and assigns
whether so expressed or not.
SECTION 16.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Corporation shall and may be done and performed with like force and effect by
the like board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Corporation.
SECTION 16.03. ADDRESSES FOR NOTICES, ETC.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the holders of Debt Securities
on the Corporation may be given or served by being deposited postage prepaid
by registered or certified mail in a post office letter box addressed to the
Corporation, 601 West Market Street, Louisville, Kentucky 40202, Attention:
Steven E. Trager.
SECTION 16.04. GOVERNING LAW.
This Indenture and each Debt Security shall be deemed to be a contract
made under the laws of the State of Kentucky, and for all purposes shall be
governed by and construed in accordance with the laws of said State, without
regard to conflict of laws principles thereof.
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SECTION 16.05. HEADINGS, ETC.
The titles 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 hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 16.06. SEVERABILITY.
In case any one or more of the provisions contained in this Indenture or
in the Debt Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Debt
Securities, but this Indenture and such Debt Securities shall be construed as
if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 16.07. ASSIGNMENT.
The Corporation will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Corporation, provided that, in the event of
any such assignment, the Corporation, will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties
thereto.
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 one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
REPUBLIC BANCORP, INC.
By: /s/ STEVEN E. TRAGER
--------------------------------
Title: President
/s/ STEVEN E. TRAGER
----------------------------
STEVEN E. TRAGER, as Trustee
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