EXHIBIT 4.10
UNION PLANTERS CORPORATION
AND
[_______],
AS WARRANT AGENT
WARRANT AGREEMENT - PREFERRED STOCK
DATED AS OF [______], 200[_]
THIS WARRANT AGREEMENT dated as of [__________], 200[_] between Union
Planters Corporation, a Tennessee corporation (hereinafter called the "Company")
and [________], as Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold with Debt
Securities or Preferred Stock -- [title of Debt Securities or Preferred Stock
being offered] (the "Offered Securities") with] warrant certificates evidencing
one or more warrants (the "Warrants") or individually a "Warrant") representing
the right to purchase [title of Preferred Stock purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company in connection with the issuance, exchange, exercise and replacement of
the Warrant Certificates, and in this Agreement wishes to set forth, among other
things, the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1 Issuance of Warrants.
[If Warrants alone -- Upon issuance, each Warrant Certificate shall
evidence one or more Warrants.] [If Offered Securities and Warrants -- Warrants
shall be [initially] issued in connection with the issuance of the Offered
Securities [but shall be separately transferable on and after _______________
(the "Detachable Date")] [and shall not be separately transferable] and each
Warrant Certificate shall evidence one or more Warrants.] Each Warrant evidenced
thereby shall represent the right, subject to the provisions contained herein
and therein, to purchase one Warrant Security. [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence _____ Warrants for each [________ principal amount] [______ shares] of
Offered Securities included in such unit.]
SECTION 1.2 Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated
_________ and may have such letters, numbers, or other marks of identification
or designation and such legends or endorsements printed, lithographed or
engraved thereon as the officers of the Company executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be executed on
behalf of the Company by the Chief Executive Officer, President, Chief Financial
Officer, Treasurer, any Senior Executive Vice President, any Executive Vice
President, or the Senior Vice President of Accounting and by the Secretary or
any Assistant Secretary under its corporate seal reproduced thereon. Such
signatures may be manual or facsimile signatures of such authorized officers and
may be imprinted or otherwise reproduced on the Warrant Certificates. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
issued hereunder.
In case any officer of the Company who shall have signed any of the
Warrant Certificates either manually or by facsimile signature shall cease to be
such officer before the Warrant Certificates so signed shall have been
countersigned and delivered by the Warrant Agent, such Warrant Certificates may
be countersigned and delivered notwithstanding that the person who signed such
Warrant Certificates ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used herein
shall mean any person in whose name at the time any Warrant Certificate shall be
registered upon the books to be maintained by the Warrant Agent for that purpose
[If Offered Securities and Warrants are not immediately detachable -- or upon
the register of the Offered Securities prior to the Detachable Date. Prior to
the Detachable Date, the Company will, or will cause the registrar of the
Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date].
SECTION 1.3 Issuance of Warrant Certificates.
Warrant Certificates evidencing the right to purchase an aggregate not
exceeding __________ Warrant Securities (except as provided in Section 1.4,
2.3(c), 3.2 and 4.1) may be executed by the Company and delivered to the Warrant
Agent upon the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly
executed on behalf of the Company, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to ________ Warrant Securities
and shall deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as hereinafter
provided or as provided in Section 2.3(c).
SECTION 1.4 Temporary Warrant Certificate.
Pending the preparation of definitive Warrant Certificates, the Company
may execute, and upon the order of the Company, the Warrant Agent shall
authenticate and deliver, temporary Warrant Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced substantially of
the tenor of the definitive Warrant Certificate in lieu of which they are issued
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine, as
evidenced by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or _______________], without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Warrant Certificates,
the Company shall execute and the Warrant Agent shall authenticate and deliver
in exchange therefor definitive Warrant Certificates representing the same
aggregate number of Warrants. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
ARTICLE II
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1 Warrant Price.
During the period from ____________ through and including_____________,
the exercise price of each Warrant will be __________. During the period from
_______________ through and including _____________, the exercise price of each
Warrant will be ________. Such exercise price of Warrant Securities is referred
to in this
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Agreement as the "Warrant Price". No adjustment shall be made for any dividends
on any Warrant Securities issuable upon exercise of any Warrant.
SECTION 2.2 Duration of Warrants.
Each Warrant may be exercised in whole at any time, as specified
herein, on or after [the date thereof] [______________] and at or before 5 P.M.,
New York City time, on ___________ or such later date as the Company may
designate, by notice to the Warrant Agent and the holders of Warrant
Certificates mailed to their addresses as set forth in the record books of the
Warrant Agent (the "Expiration Date"). Each Warrant not exercised at or before 5
P.M., New York City time, on the Expiration Date shall become void, and all
rights of the holder of the Warrant Certificates evidencing such Warrant under
this Agreement shall cease.
SECTION 2.3 Exercise of Warrants.
(a) During the period specified in Section 2.2, any whole number of
Warrants may be exercised by providing certain information as set forth on the
reverse side of the Warrant Certificate and by paying in full, in [lawful money
of the United States of America] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] [in
immediately available funds] the Warrant Price for each Warrant exercised, to
the Warrant Agent at its corporate trust office [or at __________], provided
that such exercise is subject to receipt within five business days of such
[payment] [wire transfer] by the Warrant Agent of the Warrant Certificate with
the form of election to purchase Warrant Securities set forth on the reverse
side of the Warrant Certificate properly completed and duly executed. The date
on which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to
be the date on which the Warrant is exercised. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in an account of the
Company maintained with it and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Warrants exercised, (ii)
the instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Securities to which such holder
is entitled upon such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining after such exercise,
and (iv) such other information as the Company or such Trustee shall reasonably
require.
(c) As promptly as practicable after the exercise of any Warrant, the
Company shall issue to or upon the order of the holder of the Warrant
Certificate evidencing such Warrant, the Warrant Securities to which such holder
is entitled, in fully registered form, registered in such name or names as may
be directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities, and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Security until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
(e) Prior to the issuance of any Warrants there shall have been
reserved, and the Company shall at all times keep reserved, out of its
authorized but unissued Warrant Securities, a number of shares sufficient to
provide for the exercise of the Warrant Certificates.
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ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1 No Rights as Warrant Security holder Conferred by Warrants
or Warrant Certificates.
No Warrant Certificates or Warrant evidenced thereby shall entitle the
holder thereof to any of the rights of a holder of Warrant Securities,
including, without limitation, the right to receive the payment of dividends or
distributions, if any, on the Warrant Securities or to exercise any voting
rights.
SECTION 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Warrant Agent of evidence reasonably satisfactory
to it and the Company of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably satisfactory
to the Warrant Agent and the Company and, in the case of mutilation, upon
surrender thereof to the Warrant Agent for cancellation, then, in the absence of
notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser, the Company shall execute, and an
authorized officer of the Warrant Agent shall manually countersign and deliver,
in exchange for or in lieu of the lost, stolen, destroyed or mutilated Warrant
Certificate, a new Warrant Certificate of the same tenor and evidencing a like
number of Warrants. Upon the issuance of any new Warrant Certificate under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Warrant Agent) in
connection therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or destroyed
Warrant Certificate shall represent an additional contractual obligation of the
Company, whether or not the lost, stolen or destroyed Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
SECTION 3.3 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the holder of
any Warrant Securities or the holder of any other Warrant Certificate, may, in
his own behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company suitable to enforce, or
otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.4 Reclassification, Consolidation, Merger, Sale, Conveyance
or Lease.
In case any of the following shall occur while any Warrants are
outstanding: (a) any reclassification or change of the outstanding shares of
Warrant Securities; or (b) any consolidation or merger to which the Company is
party (other than a consolidation or a merger in which the Company is the
continuing corporation and which does not result in any reclassification of, or
change in, the outstanding shares of Warrant Securities issuable upon exercise
of the Warrants); or (c) any sale, conveyance or lease to another corporation of
the property of the Company as an entirety or substantially as an entirety; then
the Company, or such successor or purchasing corporation, as the case may be,
shall make appropriate provision by amendment of this Agreement or otherwise so
that the holders of the Warrants then outstanding shall have the right at any
time thereafter, upon exercise of such Warrants, to purchase the kind and amount
of shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of shares of Warrant Securities
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease the Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated. Such successor or assuming
corporation thereupon may cause to be signed, and may issue either in its
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own name or in the name of the Company, any or all of the Warrants issuable
hereunder which theretofore shall not have been signed by the Company, and may
execute and deliver Warrant Securities in its own name, in fulfillment of its
obligations to deliver Warrant Securities upon exercise of the Warrants. All the
Warrants so issued shall in all respects have the same legal rank and benefit
under this Agreement as the Warrants theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such Warrants had
been issued at the date of the execution hereof. In any case of any such
reclassification, change, consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal counsel as
conclusive evidence that any such reclassification, change, consolidation,
merger, conveyance or transfer complies with the provisions of this Section 3.4.
ARTICLE IV
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 4.1 Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants which are immediately detachable
-- Upon] [If Offered Securities with Warrants which are not immediately
detachable -- Prior to the Detachable Date, a Warrant Certificate may be
exchanged or transferred only together with the Offered Security to which the
Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered
Security. Prior to any Detachable Date, each transfer of the Offered Security on
the register of the Offered Securities shall operate also to transfer the
related Warrant Certificates. After the Detachable Date, upon surrender at the
corporate trust office of the Warrant Agent [or __________], Warrant
Certificates evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants or the transfer thereof may be
registered in whole or in part; provided that such other Warrant Certificates
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. The Warrant Agent shall keep, at its corporate trust office [and at
____________], books in which, subject to such reasonable regulations as it may
prescribe, it shall register Warrant Certificates and exchanges and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its corporate trust office [or ___________] for exchange or
registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service charge
shall be made for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are so surrendered for exchange or registration of
transfer, an authorized officer of the Warrant Agent shall manually countersign
and deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer which will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange or registration of
transfer of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificate surrendered for such exchange or
registration of transfer.
SECTION 4.2 Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable --
Prior to the Detachable Date, the Company, the Warrant Agent and all other
persons may treat the owner of the Offered Security as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date and prior to due presentment of a Warrant Certificate for
registration of transfer,] [T]he Company and the Warrant Agent may treat the
registered holder of a Warrant Certificate as the absolute owner
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thereof for any purpose and as the person entitled to exercise the rights
represented by the Warrants evidenced thereby, any notice to the contrary
notwithstanding.
SECTION 4.3 Cancellation of Warrant Certificates.
Any Warrant Certificate surrendered for exchange, registration of
transfer or exercise of the Warrants evidenced thereby shall, if surrendered to
the Company, be delivered to the Warrant Agent, and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued and, except as expressly permitted
by this Agreement, no Warrant Certificate shall be issued hereunder in exchange
or in lieu thereof. The Warrant Agent shall deliver to the Company from time to
time or otherwise dispose of cancelled Warrant Certificates in a manner
satisfactory to the Company.
ARTICLE V
CONCERNING THE WARRANT AGENT
SECTION 5.1 Warrant Agent.
The Company hereby appoints [________] as Warrant Agent of the Company
in respect of the Warrants and the Warrant Certificates upon the terms and
subject to the conditions herein set forth; and [________] hereby accepts such
appointment. The Warrant Agent shall have the powers and authority granted to
and conferred upon it in the Warrant Certificates and herein and such further
powers and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
SECTION 5.2 Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the
Company agrees and to all of which the rights hereunder of the holders from time
to time of the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
without negligence, bad faith or breach of this Agreement on its part for
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and
to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as Warrant Agent hereunder, as well as the reasonable
costs and expenses of defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrant.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in
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any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of Warrant
Securities or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to
prevent the Warrant Agent from acting as Trustee under any of the Indenture.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates.
The Warrant Agent shall have no duty or responsibility in case of any default by
the Company in the performance of its covenants or agreements contained herein
or in the Warrant Certificates or in the case of the receipt of any written
demand from a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.2 hereof, to make any demand upon
the Company.
SECTION 5.3 Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all the Warrants have been exercised or are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than 90 days after the date on which such notice is given
unless the Company otherwise agrees. The Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it shall
become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company in good standing, authorized under
the laws of the jurisdiction of its organization to exercise corporate trust
powers) and the acceptance of such appointment by such successor Warrant Agent.
The obligation of the Company under Section 5.2(a) shall continue to the extent
set forth therein notwithstanding the resignation or removal of the Warrant
Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or shall commence a voluntary case under the federal bankruptcy laws,
as now or hereafter constituted, or under any other applicable federal or state
bankruptcy, insolvency or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Warrant Agent or its property or
affairs, or shall make an assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts generally as they become due, or
shall take corporate action in furtherance of any such action, or a decree or
order for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Warrant Agent in an involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state
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bankruptcy, insolvency or similar law; or a decree or order by a court having
jurisdiction in the premises shall have been entered for the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar
official) of the Warrant Agent or of its property or affairs, or any public
officer shall take charge or control of the Warrant Agent or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Amendment.
(a) This Agreement may be amended by the parties hereto, without the
consent of the holder of any Warrant Certificate, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision
contained herein, or making any other provisions with respect to matters or
questions arising under this Agreement as the Company and the Warrant Agent may
deem necessary or desirable; provided that such action shall not affect
adversely the interests of the holders of the Warrant Certificates.
(b) The Company and the Warrant Agent may modify or amend this
Agreement (by means of an agreement supplemental hereto or otherwise) with the
consent of holders of Warrants constituting not less than a majority in number
of the then outstanding Warrants of all series affected by such modification or
amendment, for any purpose; provided, however, that no such modification or
amendment that changes the exercise price of the Warrants of any series, reduces
the amount receivable upon exercise, cancellation or expiration of the Warrants
other than in accordance with the antidilution provisions or other similar
adjustment provisions included in the terms of the Warrants, shortens the period
of time during which the Warrants of such series may be exercised, or otherwise
materially and adversely affects the exercise rights of the affected holders or
reduces the percentage of the number of outstanding Warrants of such series, the
consent of whose holders is required for modification or amendment of this
Agreement, may be made without the consent of each holder affected thereby.
SECTION 6.2 Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to
the Company by the holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
8
SECTION 6.3 Addresses.
Any communication from the Company to the Warrant Agent with respect to
this Agreement shall be addressed to [________], ___________________, Attention:
____________________ and any communication from the Warrant Agent to the Company
with respect to this Agreement shall be addressed to Union Planters Corporation,
0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: _________________ (or
such other address as shall be specified in writing by the Warrant Agent or by
the Company).
SECTION 6.4 Applicable Law.
The validity, interpretation and performance of this Agreement and each
Warrant Certificate issued hereunder and of the respective terms and provisions
thereof shall be governed by, and construed in accordance with, the laws of the
State of New York.
SECTION 6.5 Delivery of Prospectus.
The Company will furnish to the Warrant Agent sufficient copies of a
prospectus relating to the Warrant Securities deliverable upon exercise of the
Warrants (the "Prospectus"), and the Warrant Agent agrees that upon the exercise
of any Warrant, the Warrant Agent will deliver to the holder of the Warrant
Certificate evidencing such Warrant, prior to or concurrently with the delivery
of the Warrant Securities issued upon such exercise, a Prospectus. The Warrant
Agent shall not, by reason of any such delivery, assume any responsibility for
the accuracy or adequacy of such Prospectus.
SECTION 6.6 Obtaining of Governmental Approvals.
The Company will from time to time take all action which may be
necessary to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and securities acts filings
under United States federal and state laws (including without limitation a
registration statement in respect of the Warrants and Warrant Securities under
the Securities Act of 1933), which may be or become requisite in connection with
the issuance, sale, transfer, and delivery of the Warrant Securities issued upon
exercise of the Warrant Certificates, the exercise of the Warrants, the
issuance, sale, transfer and delivery of the Warrants, the issuance, sale,
transfer and delivery of the Warrants or upon the expiration of the period
during which the Warrants are exercisable.
SECTION 6.7 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the
Company, the Warrant Agent and the holders of the Warrant Certificates any
right, remedy or claim under or by reason of this Agreement.
SECTION 6.8 Headings.
The descriptive headings of the several Articles and Sections of this
Agreement are inserted for convenience only and shall not control or affect the
meaning of construction of any of the provisions hereof.
SECTION 6.9 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which as so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
SECTION 6.10 Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times at
the principal corporate trust office of the Warrant Agent for inspection by the
holder of any Warrant Certificate. The Warrant Agent may require such holder to
submit his Warrant Certificate for inspection by it.
9
IN WITNESS WHEREOF, Union Planters Corporation and [________] have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
UNION PLANTERS CORPORATION
By:___________________________
Name:
Title:
Attest:___________________________
Title:
[____________________________]
By:___________________________
Name:
Title:
Attest:___________________________
Title:
EXHIBIT A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities Prior to _______________ this Warrant
with Warrants which are not Certificate cannot be transferred or
immediately detachable. exchanged unless attached to a [Title
of Offered Securities]]
[Form of Legend if Warrants are not Prior to _______________, Warrants
immediately exercisable evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
UNION PLANTERS CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. NEW YORK CITY TIME, ON ________________________
No. _____________ ________________ Warrants
This certifies that _____________________ or registered assigns is the
registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [if Offered Securities with Warrants which are not
immediately detachable --, subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 5 P.M., New York City time, on _______________ and] on or before
5 P.M., New York City time, on _______________, _____________ shares of [Title
of Warrant Securities] (the "Warrant Securities"), of Union Planters Corporation
(the "Company") on the following basis: during the period from ____________
through and including _____________; during the period from ____________ through
and including _____________, the exercise price of each Warrant will be
______________ (the "Warrant Price"). No adjustment shall be made for any
dividends on any Warrant Securities issuable upon exercise of any Warrant.
The holder may exercise the Warrants evidenced hereby by providing
certain information set forth on the back hereof and by paying in full [in
lawful money of the United States of America] [in cash or by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] in immediately available funds, the Warrant Price for each Warrant
exercised to the Warrant Agent (as hereinafter defined) and by surrendering this
Warrant Certificate, with the purchase form on the back hereof duly executed, at
the corporate trust office of [________], or its successor as warrant agent (the
"Warrant Agent"), [or ____________] currently at the address specified on the
reverse hereof, and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered Securities with
Warrants which are not immediately detachable --, prior to _____________ (the
"Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4.1 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
A-1
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ______________ (the "Warrant Agreement") between
the Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at _______________].
[If Offered Securities with registered Warrants which are not
immediately detachable -- Prior to ____________, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Offered Securities]
("Offered Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. After such date, this] [if Offered Securities
with registered Warrants which are immediately detachable -- Transfer of this]
Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or
______________] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or Warrant
alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or
___________________] for Warrant Certificates representing the same aggregate
number of Warrants.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
UNION PLANTERS CORPORATION
By:___________________________
Name:
Title:
Attest:___________________________
Title:
[____________________________]
By:___________________________
Name:
Title:
Attest:___________________________
Title:
A-2
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
Dollars [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Warrant
Price in full for Warrants exercised to [________], [corporate trust department]
[insert address of Warrant Agent], Attn. __________________ [or ______________],
which [payment] [wire transfer] must specify the name of the holder and the
number of Warrants exercised by such holder. In addition, the holder must
complete the information required below and present this Warrant Certificate in
person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise _________
Warrants, evidenced by this Warrant Certificate, to purchase __________ shares
of the [Title of Warrant Securities] (the "Warrant Securities") of Union
Planters Corporation and represents that he has tendered payment for such
Warrant Securities in Dollars [in cash or by certified check or official bank
check or by bank wire transfer, in each case] [by bank wire transfer] in
immediately available funds to the order of Union Planters Corporation, c/o
[insert name and address of Warrant Agent], in the amount of _______________ in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Securities be in the authorized denominations, registered in
such names and delivered all as specified in accordance with the instructions
set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: _________________ Name: _________________________________
______________________________ Address: ______________________________
(Insert Social Security or other
Identifying Number of Holder)
Signature Guaranteed Signature: ____________________________
(Signature must conform in all respects
to name of holder as specified on the
face of this Warrant Certificate and
must bear a signature guarantee by a
bank, trust company or member broker of
the New York, Midwest or Pacific Stock
Exchanges)
A-3
The Warrants evidenced hereby may be exercised at the following addresses:
By hand at
____________________________
____________________________
____________________________
____________________________
By mail at
____________________________
____________________________
____________________________
____________________________
[Instructions as to form and delivery of Warrant Securities and, if
applicable, Warrant Certificate evidencing unexercised Warrants - complete as
appropriate.]
A-4
ASSIGNMENT
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________________________
________________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Warrant Certificate and all rights thereunder, hereby irrevocably
constituting and appointing_______________attorney to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution in
the premises.
Dated:____________________ Signature:_____________________________
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of the
within Warrant Certificate in every
particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee:______________________________________________________
A-5
