EXHIBIT 99.5
================================================================================
UNUMPROVIDENT CORPORATION
to
JPMORGAN CHASE BANK
(FORMERLY KNOWN AS THE CHASE MANHATTAN BANK),
as Trustee
----------
FORM OF
FOURTH SUPPLEMENTAL INDENTURE
Dated as of May [ ], 2003
SENIOR DEBT SECURITIES
----------
Supplement to Indenture dated as of March 9, 2001
================================================================================
FOURTH SUPPLEMENTAL INDENTURE, dated as of May [ ], 2003 (the "Fourth
Supplemental Indenture"), by and between UNUMPROVIDENT CORPORATION, a Delaware
corporation (the "Company"), having its principal office at 0 Xxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, and JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank), a New York banking corporation, as trustee (the
"Trustee"), having a Corporate Trust Office at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as Trustee under the Indenture.
WHEREAS, the Company and the Trustee have as of March 9, 2001 entered
into an Indenture (the "Base Indenture") providing for the issuance by the
Company from time to time of its senior debt securities;
WHEREAS, the Company issued a series of 7.625% senior notes due 2011
under the Base Indenture and First Supplemental Indenture dated as of March 9,
2001;
WHEREAS, the Company issued a series of 7.375% senior debentures due
2032 under the Base Indenture and Second Supplemental Indenture dated as of June
18, 2002;
WHEREAS, the Company issued a series of 7.250% Public Income Notes
(PINES(R)) due 2032 under the Base Indenture and the Third Supplemental
Indenture dated as of June 25, 2002;
WHEREAS, the Company desires to issue a fourth series of senior debt
securities under the Base Indenture, and has duly authorized the creation and
issuance of such senior debt securities and the execution and delivery of this
Fourth Supplemental Indenture to modify the Base Indenture and provide certain
additional provisions as hereinafter described (the Base Indenture, as amended
and supplemented by the Fourth Supplemental Indenture is hereinafter referred to
as the "Indenture");
WHEREAS, the Company and the Trustee deem it advisable to enter into
this Fourth Supplemental Indenture for the purposes of establishing the terms of
such senior debt securities and providing for the rights, obligations and duties
of the Trustee with respect to such senior debt securities;
WHEREAS, the execution and delivery of this Fourth Supplemental
Indenture has been authorized by a resolution of the Board of Directors of the
Company;
WHEREAS, concurrent with the execution hereof, the Company has delivered
an Officers' Certificate and has caused its counsel to deliver to the Trustee an
Opinion of Counsel; and
WHEREAS, all conditions and requirements of the Base Indenture necessary
to make this Fourth Supplemental Indenture a valid, binding and legal instrument
in accordance with its terms have been performed and fulfilled by the parties
hereto and the execution and delivery thereof have been in all respects duly
authorized by the parties hereto.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the mutual premises and agreements herein
contained, the Company and the Trustee covenant and agree, for the equal and
proportionate benefit of all Holders of the Notes (as defined below), as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms.
Unless otherwise provided herein or unless the context otherwise
requires:
(a) a term defined in the Base Indenture has the same meaning when
used in this Fourth Supplemental Indenture;
(b) a term defined anywhere in this Fourth Supplemental Indenture
has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Purchase Contract Agreement (as defined below): Failed Remarketing; Last Failed
Remarketing; Normal Units; Purchase Contract Agent; Remarketing Agent,
Remarketing Agreement; Remarketing Date; Remarketing Value; Separate Notes;
Settlement Date, Subsequent Remarketing Date and Underwriting Agreement;
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Global Note" shall mean a Global Security representing the
Notes.
"Interest Rate" shall have the meaning set forth in Exhibit A.
["Over-Allotment Option" shall mean the option granted to the
underwriters pursuant to the Underwriting Agreement to purchase
up to an additional 3,000,000 Normal Units.]
"Purchase Contract Agreement" shall mean the Purchase Contract
Agreement, dated as of May [ ], 2003, between the Company and
JPMorgan Chase Bank, as purchase contract agent.
"Reset Agent" means a nationally recognized investment banking
firm chosen by the Company to determine the Reset Rate.
"Reset Date" shall mean the date following the Remarketing Date
or a Subsequent Remarketing Date, as applicable, on which the
trades in a successful remarketing of the Notes pursuant to the
Purchase Contract Agreement and the Remarketing Agreement
settle.
2
"Reset Rate" means the lowest interest rate per annum (rounded
to the nearest one-thousandth (0.001) of one percent per annum),
as determined by the Reset Agent, that the Notes shall bear in
order for the Notes to have a market value at the Remarketing
Date or any Subsequent Remarketing Date, as the case may be, of
at least 100.25% of the Remarketing Value, assuming, for this
purpose, even if not true, that all of the Notes are held as
components of Normal Units and will be remarketed.
ARTICLE II
CREATION OF THE NOTES
Section 2.1. Designation of Series.
Pursuant to the terms hereof and Sections 201 and 301 of the Base
Indenture, the Company hereby creates a series of its senior debt securities
designated as the [ ]% Senior Notes due 2008 (the "Notes"), which Notes shall be
deemed "Securities" for all purposes under the Indenture.
Section 2.2. Form of Notes.
The definitive form of the Notes shall be substantially in the form set
forth in Exhibit A attached hereto, which is incorporated herein and made part
hereof. The Stated Maturity of the Notes shall be [ ], 2008.
Section 2.3. Interest and Interest Rate Reset.
(a) Each Note will bear interest from its Issue Date or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, initially at the rate of [ ]% per annum (the
"Interest Rate") up to but excluding the Reset Date; provided that in the event
that a Last Failed Remarketing occurs, each Note shall continue to bear interest
at the Interest Rate until the principal of the Notes is paid or made available
for payment. In the event the Notes are successfully remarketed pursuant to the
Purchase Contract Agreement and the Remarketing Agreement, each Note shall bear
interest at the Reset Rate from and including the Reset Date to the date on
which the principal of the Notes is paid or made available for payment; provided
that any principal and installment of interest which is overdue shall bear
interest (to the extent that payment of such interest is enforceable under
applicable law) at the Interest Rate up to but excluding the Reset Date, if any,
and thereafter at the Reset Rate, from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be payable on
demand. Interest on the Notes initially shall be payable quarterly in arrears on
[ ], [ ], [ ] and [ ] of each year (each, an "Interest Payment Date"),
commencing [ ], 2003, through and including [ ], 2006 and then semi-annually in
arrears on the Interest Payment Dates of [ ] and [ ] of each year, commencing [
], 2006, until the principal thereof is paid or made available for payment.
(b) The amount of interest payable for any period on any Interest
Payment Date will be computed on the basis of a 360-day year consisting 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 or semi-annual,
as applicable, period for which interest is computed will be
3
computed on the basis of the actual number of days elapsed in such a 90-day or
180-day period, as applicable. In the event that any date on which interest is
payable on the Notes 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.
Section 2.4. Limit on Amount of Notes.
The Notes will be limited in aggregate principal amount to $500,000,000,
which amount to be issued shall be as set forth in any Company Order for the
authentication and delivery of Notes pursuant to the Base Indenture[ and which
amount may be increased by up to $75,000,000 in the event the Over-Allotment
option is exercised].
Section 2.5. Nature of Notes/Minimum Denomination
(a) The Notes shall constitute senior unsecured obligations of the
Company and shall rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company from time to time outstanding.
(b) The Notes shall be issuable only in registered form and without
coupons in denominations of $1,000 and any integral multiples thereof except
that an interest in a Note held as part of a Normal Unit represents an ownership
interest of 1/40th, or 2.5%, of a Note in aggregate principal amount of $1,000
and will therefore correspond to the stated amount of $25 per Normal Unit.
Section 2.6. No Sinking Fund.
The Notes do not have the benefit of any sinking fund obligation.
Section 2.7. Issuance of Notes and Payment.
(a) The Notes, on original issuance, shall be issued in the form of
(i) one or more definitive, fully registered Notes registered initially in the
name of JPMorgan Chase Bank, as Purchase Contract Agent and (ii) one fully
registered Global Note registered in the name of The Depository Trust Company
("DTC"), as Depository, or its nominee, and deposited with the Trustee, as
custodian for DTC, for credit by DTC to the respective accounts of beneficial
owners of the Separate Notes represented thereby (or such other accounts as they
may direct).
(b) The principal of and the interest on the Notes shall be payable
at the office or agency of the Company 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 the payment of public or private debts; provided that payment of
interest may be made at the option of the Company by check mailed to the
registered Holder at such address as shall appear in the Security Register or by
wire transfer to an account appropriately designated by the Holder entitled
thereto.
4
Section 2.8. Global Note.
(a) DTC shall serve as the initial Depository for the Global Note.
(b) Unless and until it is exchanged for definitive Notes in
registered form in accordance with the terms of the Base Indenture, a Global
Note may be transferred, in whole but not in part, only to another nominee of
the Depository, or to a successor Depository selected or approved by the Company
or to a nominee of such successor Depository.
Section 2.9. No Additional Amounts.
No Additional Amounts shall be payable with respect to the Notes.
Section 2.10. Defeasance.
The defeasance provisions of Article Fourteen of the Base Indenture
shall not apply to the Notes.
Section 2.11. Redemption.
If certain events specified in Exhibit A attached hereto shall occur and
be continuing, the Company may, at its option, redeem the Notes then Outstanding
in whole (but not in part) at any time at the redemption price and in accordance
with the terms and conditions set forth in Exhibit A.
Section 2.12. Remarketing.
The Notes may be remarketed at a specified price on certain dates, all
as specified in Exhibit A and in Section 5.4(b) of the Purchase Contract
Agreement and Section 4.5(d) of the Pledge Agreement.
ARTICLE III
APPOINTMENT OF THE TRUSTEE FOR THE NOTES
Section 3.1. Appointment of Trustee.
Pursuant and subject to the Indenture, the Company and the Trustee
hereby constitute the Trustee as trustee to act on behalf of the Holders of the
Notes, and as the principal Paying Agent and Security Registrar for the Notes,
effective upon execution and delivery of this Fourth Supplemental Indenture. By
execution, acknowledgment and delivery of this Fourth Supplemental Indenture,
the Trustee hereby accepts appointment as trustee, Paying Agent and Security
Registrar with respect to the Notes, and agrees to perform such trusts upon the
terms and conditions set forth in the Indenture and in this Fourth Supplemental
Indenture.
Section 3.2. Rights, Powers, Duties and Obligations of the Trustee.
Any rights, powers, duties and obligations by any provisions of the
Indenture conferred or imposed upon the Trustee shall, insofar as permitted by
law, be conferred or imposed upon and exercised or performed by the Trustee with
respect to the Notes.
5
ARTICLE IV
ORIGINAL ISSUE OF NOTES
Section 4.1. Original Issue of Notes.
Notes in the aggregate principal amount of $500,000,000 [(which amount
may be increased by up to $75,000,000 in the event the Over-Allotment Option is
exercised)] may, upon execution of this Fourth Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes in accordance with a
Company Order. The Issue Date of the Notes shall be May [ ], 2003.
ARTICLE V
MISCELLANEOUS
Section 5.1. Application of Fourth Supplemental Indenture.
Each and every term and condition contained in the Fourth Supplemental
Indenture that modifies, amends or supplements the terms and conditions of the
Base Indenture shall apply only to the Notes created hereby and not to any
future series of Securities.
Section 5.2. Benefits of Fourth Supplemental Indenture.
Nothing contained in this Fourth Supplemental Indenture shall or shall
be construed to confer upon any person other than a Holder of the Notes, the
Company and the Trustee any right or interest to avail itself or himself, as the
case may be, of any benefit under any provision of the Base Indenture or this
Fourth Supplemental Indenture.
Section 5.3. Effective Date.
This Fourth Supplemental Indenture shall be effective as of the date
first above written and upon the execution and delivery hereof by each of the
parties hereto.
Section 5.4. Governing Law.
THIS FOURTH SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 5.5. Counterparts.
This Fourth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
6
Section 5.6. Ratification of Base Indenture.
The Base Indenture, as supplemented by this Fourth Supplemental
Indenture, is in all respects ratified and confirmed, and this Fourth
Supplemental Indenture shall be deemed part of the Base Indenture in the manner
and to the extent herein and therein provided.
7
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
UNUMPROVIDENT CORPORATION,
as Issuer
By:
-----------------------
Name:
Title:
[Corporate Seal]
Attest:
--------------------------------
Name:
Title:
JPMORGAN CHASE BANK
(FORMERLY KNOWN AS THE
CHASE MANHATTAN BANK),
as Trustee
By:
----------------------
Name:
Title:
Attest:
--------------------------------
Name:
Title:
EXHIBIT A TO FOURTH SUPPLEMENTAL INDENTURE
FORM OF NOTE
[If the Note is a Global Note, insert - THIS NOTE IS A GLOBAL NOTE
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF THE DEPOSITORY OR A NOMINEE OF THE DEPOSITORY, WHICH MAY BE TREATED
BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
NOTE FOR ALL PURPOSES, INCLUDING THE PAYMENT OF PRINCIPAL AND INTEREST.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
INDENTURE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.]
[If the Depository is The Depository Trust Company, insert - UNLESS THIS
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO
CEDE & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & Co., HAS AN
INTEREST HEREIN.]
No.
CUSIP No. [ ] $_____________
UNUMPROVIDENT CORPORATION
[ ]% SENIOR NOTE DUE 2008
UNUMPROVIDENT CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________, the principal sum of
______________ United States dollars (U.S.$________) on [ ], 2008 (such date is
hereinafter referred to as the "Stated Maturity"), and to pay interest thereon,
from May [ ], 2003, or from the most recent Interest Payment Date (as defined
below) for which interest has been paid or duly provided for, initially at the
rate of [ ]% per annum (the "Interest Rate") up to, but excluding, the Reset
Date; provided that in the event a Last Failed Remarketing occurs, this Note
shall continue to bear interest at the Interest Rate until the principal of the
Notes is paid or made available for payment. In the event the Notes are
A-1
successfully remarketed pursuant to the Purchase Contract Agreement and the
Remarketing Agreement, this Note shall bear interest at the Reset Rate, from and
including the Reset Date to the date on which principal hereof is paid or made
available for payment; provided that any principal and installment of interest
which is overdue shall bear interest (to the extent that payment of such
interest is enforceable under applicable law) at the Interest Rate up to but
excluding the Reset Date, if any, and thereafter at the Reset Rate, from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand. Interest on this Note initially
shall be payable quarterly in arrears on [ ], [ ], [ ] and [ ] of each year
(each, an "Interest Payment Date"), commencing [ ], 2003 through and including [
], 2006, and then semi-annually in arrears on the Interest Payment Dates of [ ]
and [ ] of each year, commencing on [ ], 2006, until the principal hereof is
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be, so long as the Notes are
represented by a Global Note, the Business Day prior to the relevant Interest
Payment Date, and in case the Notes are no longer represented by a Global Note,
the 15th calendar day (whether or not a Business Day) prior to the relevant
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date and shall otherwise be
payable, all as more fully provided in the Indenture. Payments of principal
shall be made upon the surrender of this Note at the Corporate Trust Office of
the Trustee, or at such other office or agency of the Company as may be
designated by the Company for such purpose in the Borough of Manhattan, The City
of New York or in the City of Chattanooga, Tennessee, in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, by Dollar check drawn on, or
transfer to, a Dollar account. Payments of interest on this Note may be made by
Dollar check, drawn on a Dollar account, mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, or, upon
written application by the Holder to the Security Registrar setting forth wire
instructions not later than the relevant Regular Record Date, by wire transfer
to a Dollar account. The amount of interest payable for any period on any
Interest Payment Date shall be computed on the basis of a 360-day year
consisting 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 or semi-annual period, as applicable, for which interest is computed
will be computed on the basis of the actual number of days elapsed in such a
90-day or 180-day period, as applicable.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if fully set forth at this place.
Unless the certificate of authorization hereon has been executed by the
Trustee referred to on the reverse hereof or an Authentication Agent by the
manual signature of one of their respective authorized signatories, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this Note to be executed and
delivered under its corporate seal.
Dated:
UNUMPROVIDENT CORPORATION
By:
-----------------------
Name:
Title:
[Corporate Seal]
Attest:
--------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
Dated:
JPMORGAN CHASE BANK
(FORMERLY KNOWN AS THE
CHASE MANHATTAN BANK),
as Trustee
By:
-----------------------
Authorized Officer
A-3
[FORM OF REVERSE]
This Note is one of a duly authorized issue of securities of the Company
designated as its "[ ]% Senior Notes due 2008" (herein sometimes referred to as
the "Securities"), initially limited in aggregate principal amount to
$500,000,000 [(which amount may be increased by up to $75,000,000 in the event
the Over-Allotment Option is exercised)], issued and to be issued under and
pursuant to an Indenture, dated as of March 9, 2001 (the "Base Indenture"), duly
executed and delivered between the Company and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank), as Trustee (the "Trustee"), and a Fourth
Supplemental Indenture, dated as of May [ ], 2003, between the Company and the
Trustee (such Base Indenture as amended and supplemented by the Fourth
Supplemental Indenture, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered.
The Notes of this series are issuable only in registered form without
coupons, in denominations of $1,000 and any integral multiple thereof except
that an interest in a Note held as part of a Normal Unit represents an ownership
interest of 1/40th, or 2.5%, of a Note in aggregate principal amount of $1,000
and will therefore correspond to the stated amount of $25 per Normal Unit. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series so issued are exchangeable for a like aggregate principal
amount of Notes of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Securities of this series were initially issued as components of the
Company's [ ]% Adjustable Conversion-Rate Equity Security Units that are in the
form of Normal Units, each such Normal Unit initially consisting of (a) a stock
purchase contract (each, a "Purchase Contract") under which (i) the holder will
agree to purchase from the Company on [ ], 2006, a specified number of newly
issued shares of common stock, par value $0.10 per share, of the Company and
(ii) the Company will pay to the holder quarterly contract adjustment payments
and (b) a 1/40, or 2.5%, ownership interest in a Security of this series of
$1,000 principal amount. In accordance with the terms of the Purchase Contract
Agreement, on their initial issuance, the Securities of this series were pledged
by the Purchase Contract Agent, on behalf of the holders of the Normal Units, to
BNY Midwest Trust Company, as collateral agent, custodial agent and securities
intermediary (the "Collateral Agent"), pursuant to the Pledge Agreement, dated
as of May [ ], 2003 (the "Pledge Agreement"), among the Company, the Purchase
Contract Agent and the Collateral Agent, to secure such holders' obligations to
purchase shares of common stock of the Company under the Purchase Contracts.
Pursuant to the Remarketing Agreement, the Remarketing Agent shall use its
commercially reasonable best efforts to remarket the Securities of this series
that are included in Normal Units at a specified price on certain dates, all as
specified in Section 5.4(b) of the Purchase Contract Agreement. Pursuant to
Section 4.5(d) of the Pledge Agreement, Holders of all other Securities of this
series may elect to have such Securities remarketed in accordance with the
procedures set forth therein.
If a Special Event (as herein defined) shall occur and be continuing,
the Company may, at its option, redeem the Notes then Outstanding in whole (but
not in part) at any time ("Special Event Redemption") at the Redemption Price
(as herein defined). If such Special Event Redemption occurs prior to a
successful remarketing pursuant to Section 5.4 of the Purchase
A-4
Contract Agreement, the Redemption Price payable with respect to the Notes
pledged to the Collateral Agent under the Pledge Agreement will be paid to the
Collateral Agent on the Special Event Redemption Date on or prior to 12:00 p.m.,
New York City time, by wire transfer in immediately available funds at such
place and at such account as may be designated by the Collateral Agent in
exchange for the Notes pledged to the Collateral Agent. In such event, the
Collateral Agent shall apply such Redemption Price pursuant to the terms of the
Purchase Contract Agreement and the Pledge Agreement.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the date of redemption (the "Special Event Redemption Date")
to each registered Holder of Notes of this Series to be redeemed at its
registered address as more fully provided in the Indenture. Unless the Company
defaults in payment of the Redemption Price, on and after the Special Event
Redemption Date interest shall cease to accrue on such Notes of this Series.
"Accounting Event" means the receipt at any time prior to the earlier of
the date of any successful remarketing of the Notes pursuant to the Purchase
Contract Agreement and the Remarketing Agreement and the Stock Purchase Date by
the audit committee of the Board of Directors of a written report in accordance
with Statement on Auditing Standards ("SAS") No. 97, "Amendment to SAS No. 50 -
Reports on the Application of Accounting Principles," from the Company's
independent auditors, provided at the request of the management of the Company,
to the effect that, as a result of a change in accounting rules after May [ ],
2003, the Company must either (a) account for the Purchase Contracts as
derivatives under SFAS 133 (or any successor accounting standard) or (b) account
for the Units using the if-converted method under SFAS 128 (or any successor
accounting standard), and that such accounting treatment will cease to apply
upon redemption of the Notes.
"Quotation Agent" means Xxxxxxx, Xxxxx & Co. or any of its successors or
any other primary U.S. government securities dealer in New York City selected by
the Company.
"Redemption Price" means, for each Note, the product of (i) the
principal amount of such Note and (ii) a fraction whose numerator is the
applicable Treasury Portfolio Purchase Price (as herein defined) and whose
denominator is the applicable Special Event Redemption Principal Amount (as
herein defined).
"Special Event" means either a Tax Event or an Accounting Event.
"Special Event Redemption Principal Amount" means (i) in the case of a
Special Event Redemption Date occurring prior to a successful remarketing of the
Notes pursuant to the Purchase Contract Agreement, the aggregate principal
amount of Notes included in Normal Units on such date, and (ii) in the case of a
Special Event Redemption Date occurring after a successful remarketing of the
Notes pursuant to the Purchase Contract Agreement or the Stock Purchase Date,
the aggregate principal amount of the Notes.
"Tax Event" means the receipt by the Company of an opinion of a
nationally recognized tax counsel experienced such matters (which may be Xxxxxx
& Bird LLP), to the effect that there is more than an insubstantial risk that
interest payable by the Company on the Notes on the next Interest Payment Date
will not be deductible, in whole or in part, by the Company for United States
federal income tax purposes as a result of (a) any amendment to, or change
(including any announced proposed change) in, the laws (or any regulations
thereunder) of the United States or
A-5
any political subdivision or taxing authority thereof or therein affecting
taxation, (b) any amendment to or change in an official interpretation or
application of such laws or regulations by any legislative body, court,
governmental agency or regulatory authority or (c) any official interpretation,
pronouncement or application that provides for a position with respect to such
laws or regulations that differs from the generally accepted position on May [
], 2003, which amendment, change or proposed change is effective or which
interpretation or pronouncement is announced on or after May [ ], 2003.
"Treasury Portfolio Purchase Price" means the lowest aggregate price
quoted by a primary U.S. government securities dealer in New York City to the
Quotation Agent on the third Business Day immediately preceding the Special
Event Redemption Date for the purchase of the Treasury Portfolio for settlement
on the Special Event Redemption Date.
"Treasury Portfolio" means: (i) if a Special Event Redemption occurs
prior to a successful remarketing of the Notes pursuant to the provisions of the
Purchase Contract Agreement, a portfolio (A) of zero coupon U.S. Treasury
securities consisting of principal or interest strips of U.S. Treasury
securities that mature on or prior to [ ], 2006 in an aggregate amount equal to
the applicable Special Event Redemption Principal Amount and (B) with respect to
each scheduled Interest Payment Date on the Notes that occurs after the Special
Event Redemption Date and on or before [ ], 2006, interest or principal strips
of U.S. Treasury securities that mature on or prior to such Interest Payment
Date in an aggregate amount equal to the aggregate interest payment that would
be due on the applicable Special Event Redemption Principal Amount on such date
if the interest rate of the Notes were not reset on the Reset Date, and (ii)
solely for purposes of determining the Treasury Portfolio Purchase Price in the
case of a Special Event Redemption Date occurring after a successful remarketing
of the Notes pursuant to the Purchase Contract Agreement on [ ], 2006, a
portfolio (A) of zero coupon U.S. Treasury securities consisting of principal or
interest strips of U.S. Treasury securities that mature on or prior to the
Maturity Date in an aggregate amount equal to the applicable Special Event
Redemption Principal Amount and (B) with respect to each scheduled Interest
Payment Date on the Notes that occurs after the Special Event Redemption Date
and on or before the Maturity Date, interest or principal strips of U.S.
Treasury securities that mature on or prior to such Interest Payment Date in an
aggregate amount equal to the aggregate interest payment that would be due on
the applicable Special Event Redemption Principal Amount of the Notes
Outstanding on the Special Event Redemption Date.
No sinking fund is provided for the Notes.
In the event that any date on which interest is payable on this Note 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.
In case an Event of Default shall occur and be continuing, the principal
of all of the Notes, together with accrued interest to the date of declaration,
may be declared due and payable in the manner and with the effect provided in
the Indenture.
A-6
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
written consent of the Holders of not less than a majority in principal amount
of the Securities at the time Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note or such other Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless (i) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, (ii) the Holders of
not less than 25% in principal amount of the Notes that are Outstanding shall
have made a written request to the Trustee to institute proceedings in respect
of such Event of Default as Trustee and offered the Trustee indemnity
satisfactory to it, (iii) the Trustee shall not have received from the Holders
of a majority in principal amount of the Notes that are Outstanding a direction
inconsistent with such request, and (iv) the Trustee shall have failed to
institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
any Holder of this Note for the enforcement of any payment of principal hereof,
or any premium of interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable on the Security Register
upon surrender of this Note for registration of transfer at the Corporate Trust
Office of the Trustee or at such other office or agency of the Company as may be
designated by it for such purpose in the Borough of Manhattan, The City of New
York or the City of Chattanooga, Tennessee (which shall initially be an office
or agency of the Trustee), or at such other offices or agencies as the Company
may designate, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Security Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees by the
Security Registrar. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
recover any tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered, as the owner thereof for all
purposes, whether or not such Note be overdue,
A-7
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse for the payment of the principal (and premium, if any) or
interest on this Note and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or any indenture supplemental thereto
or in any Note, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent,
officer or director or subsidiary, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of consideration for
the issue hereof, expressly waived and released.
[If Note is a Global Note, insert - This Note is a Global Note and is
subject to the provisions of the Indenture relating to Global Notes, including
the limitations in Section 305 of the Base Indenture on transfers and exchanges
of Global Notes.]
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
All capitalized terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
A-8
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ___________ Custodian ________________
(Minor)
under Uniform Gifts to Minors Act ___________
(State)
Additional abbreviations may also be used though not in the above list.
A-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
agent to transfer this Note on the Security Register. The agent may substitute
another to act for him or her.
Dated:
Signed: ___________________________
Signature Guarantee:
(Sign exactly as your name appears on the other side of this Note)
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-10
