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EXHIBIT 4.3
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 14, 1998
BETWEEN
LINCOLN NATIONAL CORPORATION
AS ISSUER
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS TRUSTEE
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................ 2
SECTION 1.1 Definition of Terms....................................... 2
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE
DEBENTURES......................................................... 3
SECTION 2.1 Designation and Principal Amount.......................... 3
SECTION 2.2 Maturity.................................................. 4
SECTION 2.3 Form and Payment.......................................... 4
SECTION 2.4 Global Debenture.......................................... 4
SECTION 2.5 Interest.................................................. 5
ARTICLE III REDEMPTION OF THE DEBENTURES....................................... 7
SECTION 3.1 Tax Event Redemption...................................... 7
SECTION 3.2 Redemption Procedure for Debentures....................... 7
SECTION 3.3 No Sinking Fund........................................... 7
SECTION 3.4 Option to Put Debentures upon a Failed Remarketing........ 8
SECTION 3.5 Repurchase Procedure for Debentures....................... 8
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD............................... 9
SECTION 4.1 Extension of Interest Payment Period...................... 9
SECTION 4.2 Notice of Extension....................................... 10
ARTICLE V EXPENSES........................................................... 10
SECTION 5.1 Payment of Expenses....................................... 10
SECTION 5.2 Payment Upon Resignation or Removal....................... 11
ARTICLE VI NOTICE............................................................. 11
SECTION 6.1 Notice by the Company..................................... 11
ARTICLE VII FORM OF DEBENTURE.................................................. 12
SECTION 7.1 Form of Debenture......................................... 12
ARTICLE VIII ORIGINAL ISSUE OF DEBENTURES....................................... 20
SECTION 8.1 Original Issue of Debentures.............................. 20
ARTICLE IX MISCELLANEOUS...................................................... 21
SECTION 9.1 Ratification of Indenture................................. 21
SECTION 9.2 Trustee Not Responsible for Recitals...................... 21
SECTION 9.3 Governing Law............................................. 21
SECTION 9.4 Separability.............................................. 21
SECTION 9.5 Counterparts.............................................. 21
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SECTION 9.6 Guarantee Agreement and Trust Agreement................... 21
ARTICLE X REMARKETING........................................................ 22
SECTION 10.1 Effectiveness of this Article............................. 22
SECTION 10.2 Remarketing Procedures.................................... 22
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FIRST SUPPLEMENTAL INDENTURE, dated as of August 14, 1998 (the "First
Supplemental Indenture"), between Lincoln National Corporation, a corporation
duly organized and existing under the laws of the State of Indiana, (the
"Company"), and The First National Bank of Chicago, as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the Junior Subordinated
Indenture dated as of May 1, 1996 (the "Base Indenture"), to the Trustee to
provide for the future issuance of the Company's junior subordinated debentures,
notes or other evidence of indebtedness (the "Securities"), to be issued from
time to time in one or more series as might be determined by the Company under
the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its 6.40% Junior Subordinated Deferrable Interest Debentures, Series D
(the "Debentures") with specific terms and provisions, the form and substance of
such Debentures and the terms, provisions and conditions thereof to be set forth
as provided in the Base Indenture and this First Supplemental Indenture
(together, the "Indenture");
WHEREAS, Lincoln National Capital IV, a Delaware statutory business
trust (the "Trust"), has offered to the public its 6.40% Preferred Securities
(the "Preferred Securities"), representing, undivided beneficial ownership
interests in the assets of the Trust, and proposes to invest the proceeds from
such offering, together with the proceeds of the issuance and sale by the Trust
to the Company of its 6.40% Common Securities (the "Common Securities" and
together with the Preferred Securities, the "Trust Securities"), in the
Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company and all acts and
things necessary have been done and performed to make this First Supplemental
Indenture enforceable in accordance with its terms, and the execution and
delivery of this First Supplemental Indenture has been duly authorized in all
respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when
used in this First Supplemental Indenture;
(b) a term defined anywhere in this First 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
Trust Agreement: (i) Administrative Trustee; (ii) Applicable Principal Amount;
(iii) Authorized Newspaper; (iv) Business Day; (v) Clearing Agency; (vi)
Delaware Trustee; (vii) DTC; (viii) FELINE PRIDES; (ix) Growth PRIDES; (x)
Income PRIDES; (xi) Investment Company Event; (xii) Preferred Security
Certificate; (xiii) Pricing Agreement; (xiv) Property Trustee; (xv) Purchase
Contract Agreement; (xvi) Put Option (xvii) Quotation Agent; (xviii) Redemption
Amount, (xix) Reset Agent; (xx) Reset Announcement Date; (xxi) Reset Rate
(xxii) Reset Spread;(xxiii) Tax Event; (xxiv) Tax Event Redemption Date; (xxv)
Treasury Portfolio Purchase Price; (xxvi) Treasury Portfolio; (xxvii) Treasury
Securities and (xxviii) Two-Year Benchmark Treasury.
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Custodial Agent" means The Chase Manhattan Bank, as Custodial Agent.
"Debenture Repayment Price" shall have the meaning set forth in Section
3.4.
"Deferred Interest" shall have the meaning set forth in Section 4.1
hereof.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Tax Event, an Investment Company Event or otherwise, the Trust
is to be dissolved in accordance with the Trust Agreement, and, except in the
case of a Tax Event Redemption, the Debentures held by the Property Trustee are
to be distributed to the holders of the Trust Securities issued by the Trust pro
rata in accordance with the Trust Agreement.
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"Exchange Agent" means the Property Trustee.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Failed Remarketing" shall have the meaning set forth in Section 5.4(b)
of the Purchase Contract Agreement.
"Global Debentures" shall have the meaning set forth in Section 2.4.
"Non Book-Entry Preferred Securities" shall have the meaning set forth
in Section 2.4.
"Pledge Agreement" means the Pledge Agreement dated as of August 14,
1998, among the Company, the Trust, The Chase Manhattan Bank, as collateral
agent, custodial agent and securities intermediary and The First National Bank
of Chicago, as purchase contract agent.
"Purchase Contract" shall have the meaning set forth in the Purchase
Contract Agreement, dated as of August 14, 1998, between the Company and The
First National Bank of Chicago, as purchase contract agent.
"Purchase Contract Settlement Date" means August 16, 2001.
"Remarketing Agent" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and/or any successor thereto or replacement Remarketing Agent under
the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement, dated as of
August 14, 1998, among the Company, the Trust, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, as remarketing agent and The First National Bank of Chicago,
as purchase contract agent.
"Remarketing Date" shall have the meaning set forth in the Remarketing
Agreement.
"Rights Plan" means the Amended and Restated Rights Agreement dated
November 14, 1996 between the Company and The First National Bank of Boston.
"Trust Agreement" means the Amended and Restated Trust Agreement of
Lincoln National Capital IV, a Delaware statutory business trust, dated as of
August 14, 1998.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Securities designated the 6.40%
Debentures due August 15, 2003 (the "Debentures"), limited in aggregate
principal amount to $206,186,000 ($237,113,850 if the Underwriters'
over-allotment option pursuant to the Underwriting Agreement and the Pricing
Agreement is exercised in full), which amount shall be as set forth
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in any written order of the Company for the authentication and delivery of
Debentures pursuant to Section 3.3 of the Base Indenture.
SECTION 2.2 MATURITY.
The Maturity Date will be August 15, 2003.
SECTION 2.3 FORM AND PAYMENT.
Except as provided in Section 2.4, the Debentures shall be issued in
fully registered certificated form without interest coupons, bearing identical
terms. Principal and interest on the Debentures issued in certificated form will
be payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Property Trustee; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Property Trustee, the payment of the principal of and interest (including
Compounded Interest and expenses and taxes of the Trust set forth in Section 4.1
hereof, if any) on such Debentures held by the Property Trustee will be made at
such place and to such account as may be designated by the Property Trustee.
SECTION 2.4 GLOBAL DEBENTURE.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented
to the Trustee by the Property Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Debentures (a "Global Debenture"),
to be registered in the name of the Clearing Agency, or its nominee,
and delivered by the Property Trustee to the Clearing Agency for
crediting to the accounts of its participants pursuant to the
instructions of the Administrative Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for authentication
and delivery in accordance with the Indenture. Payments on the
Debentures issued as a Global Debenture will be made to the Clearing
Agency; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may
be presented to the Trustee by the Property Trustee and any Preferred
Security Certificate which represents Preferred Securities other than
Preferred Securities held by the Clearing Agency or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent
beneficial interests in the Debentures presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the
Security Registrar for transfer or reissuance at which time such
Preferred Security
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Certificates will be cancelled and a Debenture, 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 cancelled,
will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Indenture to such
holder. On issue of such Debentures, Debentures with an equivalent
aggregate principal amount that were presented by the Property Trustee
to the Trustee will be deemed to have been cancelled.
(b) Unless and until it is exchanged for the Debentures in
registered form, a Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Clearing Agency, or to a successor Clearing
Agency selected or approved by the Company or to a nominee of such successor
Clearing Agency.
(c) If at any time the Clearing Agency notifies the Company that it
is unwilling or unable to continue as a Clearing Agency or if at any time the
Clearing Agency for such series shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, and a successor Clearing Agency for such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, the Company
will execute, and, subject to Article III of the Indenture, the Trustee, upon
written notice from the Company, will authenticate and deliver the Debentures in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. In addition, the Company may at
any time determine that the Debentures shall no longer be represented by a
Global Debenture. In such event the Company will execute, and subject to Section
3.3 of the Base Indenture, the Trustee, upon receipt of an Officer's Certificate
evidencing such determination by the Company, will authenticate and deliver the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. Upon the
exchange of the Global Debenture for such Debentures in definitive registered
form without coupons, in authorized denominations, the Global Debenture shall be
cancelled by the Trustee. Such Debentures in definitive registered form issued
in exchange for the Global Debenture shall be registered in such names and in
such authorized denominations as the Clearing Agency, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Clearing Agency for
delivery to the Persons in whose names such Securities are so registered.
SECTION 2.5 INTEREST.
(a) Each Debenture will bear interest initially at the rate of
6.40% per annum (the "Coupon Rate") from the original date of issuance until
August 15, 2001, and at the Reset Rate thereafter until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate until August 15, 2001 and at the
Reset Rate thereafter,
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compounded quarterly, payable (subject to the provisions of Article IV herein)
quarterly in arrears on February 16, May 16, August 16 and November 16 of each
year (each, an "Interest Payment Date") commencing on November 16, 1998, to the
Person in whose name such Debenture or any predecessor Debenture is registered,
at the close of business on the Regular Record Date for such interest
installment, which, in respect of (i) Debentures of which the Property Trustee
is the Holder and the Preferred Securities are in book-entry only form or (ii) a
Global Debenture, shall be the close of business on the Business Day next
preceding that Interest Payment Date. Notwithstanding the foregoing sentence, if
(i) the Debentures are held by the Property Trustee and the Preferred Securities
are no longer in book-entry only form or (ii) the Debentures are not represented
by a Global Debenture, the Company may select a Regular Record Date for such
interest installment which shall be more than one Business Day but less than 60
Business Days prior to an Interest Payment Date.
(b) The Coupon Rate on the Debentures will be reset on the third
Business Day immediately preceding the Purchase Contract Settlement Date to the
Reset Rate (which Reset Rate will become effective on and after the Purchase
Contract Settlement Date). On the tenth Business Day immediately preceding the
Purchase Contract Settlement Date, the Reset Announcement Date, the Reset Spread
and the relevant Two-Year Benchmark Treasury will be announced by the Company.
On the Business Day immediately following such Reset Announcement Date, the
Holders of Debentures will be notified of such Reset Spread and Two-Year
Benchmark Treasury by the Company. Such notice shall be sufficiently given to
such Holders of Debentures if published in an Authorized Newspaper.
(c) The amount of interest payable for any period will be computed
on the basis of twelve 30-day months and a 360-day year. The amount of interest
payable for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Debenture is not a Business Day, then
a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1 TAX EVENT REDEMPTION.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Debentures in whole (but not in part) at any time at a
Redemption Price per Debenture equal to the Redemption Amount plus accrued and
unpaid interest thereon, including Compounded Interest, if any, to the date of
such redemption (the "Tax Event Redemption Date"). If, following the occurrence
of a Tax Event, the Company exercises its option to redeem the Debentures, then
the proceeds of such redemption, if distributed to the Property Trustee as the
sole Holder of such Debentures, will be applied by the Property Trustee to
redeem Trust
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Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed, at a Redemption Price per Trust
Security equal to the Redemption Amount plus accrued and unpaid distributions
thereon to the date of such redemption. If, following the occurrence of a Tax
Event prior to the Purchase Contract Settlement Date, the Company exercises its
option to redeem the Debentures, the Company shall appoint the Quotation Agent
to assemble the Treasury Portfolio in consultation with the Company. Notice of
any redemption will be mailed at least 30 days but not more than 60 days before
the Tax Event Redemption Date to each registered Holder of the Debentures to be
prepaid at its registered address. Unless the Company defaults in payment of the
Redemption Price, on and after the redemption date interest shall cease to
accrue on such Debentures.
SECTION 3.2 REDEMPTION PROCEDURE FOR DEBENTURES.
Payment of the Redemption Price to each Holder of Debentures shall be
made by the Company, no later than 12:00 noon, New York City time, on the Tax
Event Redemption Date, by check or wire transfer in immediately available funds
at such place and to such account as may be designated by each such Holder of
Debentures, including the Property Trustee or the Collateral Agent, as the case
may be. If the Trustee holds immediately available funds sufficient to pay the
Redemption Price of the Debentures (or, if the Company is acting as Paying Agent
or the Property Trustee has received the Redemption Price), then, on such Tax
Event Redemption Date, such Debentures will cease to be outstanding and interest
thereon will cease to accrue, whether or not such Debentures have been received
by the Company, and all other rights of the Holder in respect of the Debentures
shall terminate and lapse (other than the right to receive the Redemption Price
upon delivery of such Debentures but without interest on such Redemption Price).
SECTION 3.3 NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
SECTION 3.4 OPTION TO PUT DEBENTURES UPON A FAILED REMARKETING.
If a Failed Remarketing (as described in Section 5.4(b) of the Purchase
Contract Agreement and incorporated herein by reference) has occurred, each
holder of Trust Securities who holds such Trust Securities on the day
immediately following the Purchase Contract Settlement Date, shall have the
right, upon at least three Business Days' prior notice, to require the Trust to
distribute their pro rata share of Debentures to the Exchange Agent and to
require the Exchange Agent to put such Debentures to the Company (the "Put
Option"), on behalf of such holders on September 1, 2001 (the "Put Option
Exercise Date") at a repayment price of $25 per Preferred Security plus an
amount equal to the accrued and unpaid Distributions (including deferred
distributions, if any) thereon to the date of payment (the "Debenture Repayment
Price").
SECTION 3.5 REPURCHASE PROCEDURE FOR DEBENTURES.
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(a) In order for the Debentures to be repurchased on the Put Option
Exercise Date, the Company must receive on or prior to 5:00 p.m. New York City
time on the third Business Day immediately preceding the Put Option Exercise
Date, at the then principal executive offices of the Company, the Debentures to
be repurchased with the form entitled "Option to Elect Repayment" on the reverse
of or otherwise accompanying such Debentures duly completed. Any such notice
received by the Company shall be irrevocable. All questions as to the validity,
eligibility (including time of receipt) and acceptance of the Debentures for
repayment shall be determined by the Company, whose determination shall be final
and binding.
(b) Payment of the Debenture Repayment Price to the Exchange Agent
shall be made through the Trustee, subject to the Trustee's receipt of payment
from the Company in accordance with the terms of the Indenture either through
the Trustee or the Company acting as Paying Agent, no later than 12:00 noon, New
York City time, on the Put Option Exercise Date, and to such account as may be
designated by the Exchange Agent. If the Trustee holds immediately available
funds sufficient to pay the Debenture Repayment Price of the Debentures
presented for repayment (or, if the Company is acting as Paying Agent and the
Property Trustee has received the Debenture Repayment Price), then, immediately
prior to the close of business on the Business Day immediately preceding the Put
Option Exercise Date, such Debentures will cease to be outstanding and interest
thereon will cease to accrue, whether or not such Debentures have been received
by the Company, and all other rights of the Holder in respect of the Debentures,
including the Holder's right to require the Company to repay such Debentures,
shall terminate and lapse (other than the right to receive the Debenture
Repayment Price upon delivery of such Debentures but without interest on such
Debenture Repayment Price). Neither the Trustee nor the Company will be required
to register or cease to be registered the transfer of any Debenture for which
repayment has been elected.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 EXTENSION OF INTEREST PAYMENT PERIOD.
So long as no Event of Default has occurred or is continuing under the
Indenture, the Company shall have the right at any time during the term of the
Debentures, from time to time, to defer the payment of interest on such
Debentures for a period not extending, in the aggregate, beyond the maturity
date of the Debentures (each an "Extension Period"), during which Extension
Periods the Company shall have the right to make partial payments of interest on
any Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law); provided that during any such Extension
Period, the Company will not, and will not permit any Subsidiary of the Company
to, (i) declare or pay any dividends or distributions or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
outstanding capital stock or (ii) make any payment of principal of, interest or
premium, if any, on or repay, repurchase or redeem any debt security of the
Company that ranks pari passu with or junior in interest to the Debentures or
make any guarantee payments with respect to any guarantee by the Company of the
debt securities of any subsidiary of the Company if such
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guarantee ranks pari passu with or junior in interest to the Debentures (other
than (a) dividends or distributions in Common Stock of the Company, (b)
redemptions or purchases of any rights pursuant to the Company's Rights Plan, or
any successor to such Rights Plan, and the declaration of a dividend of such
rights or the issuance of Stock under such plans in the future, (c) payments
under any Lincoln Guarantee (as defined in the Indenture), and (d) purchases of
Common Stock related to the issuance of Common Stock under any of the Company's
benefit plans for its directors, officers or employees). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that no Extension Period shall extend beyond
the Maturity of the Debentures. At the end of an Extension Period, the Company
shall pay all interest then accrued and unpaid (together with the interest
thereon at the rate of 6.40% until August 15, 2001 and at the Reset Rate
thereafter to the extent that payment of such interest is enforceable under
applicable law). No interest shall be due and payable during an Extension Period
except at the end thereof.
SECTION 4.2 NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Administrative Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable, or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to The New York Stock
Exchange, Inc. (the "NYSE") or other applicable self-regulatory organization or
to holders of the Preferred Securities issued by the Trust.
(b) If the Property Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give the Holders of the Debentures and the Trustee written
notice of its selection of such Extended Interest Payment Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to the NYSE or other applicable
self-regulatory organization or to Holders of the Debentures.
ARTICLE V
EXPENSES
SECTION 5.1 PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the Debentures to
the Property Trustee and in connection with the sale of the Trust Securities by
the Trust, the Company, in its capacity as borrower with respect to the
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures, including commissions to the underwriters payable
pursuant to the Underwriting
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Agreement and the Pricing Agreement and compensation of the Trustee under the
Indenture in accordance with the provisions of Section 6.7 of the Base
Indenture;
(b) pay all costs and expenses of the Trust including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the Property
Trustee and 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) to which the Trust
might become subject;
(c) be primarily liable for any indemnification obligations arising
with respect to the Trust Agreement; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2 PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this First Supplemental Indenture or the Base
Indenture or the removal or resignation of the Trustee, the Company shall pay to
the Trustee all amounts accrued to the date of such termination, removal or
resignation. Upon termination of the Trust Agreement or the removal or
resignation of the Delaware Trustee or the Property Trustee, as the case may be,
the Company shall pay to the Delaware Trustee or the Property Trustee, as the
case may be, all amounts accrued to the date of such termination, removal or
resignation.
ARTICLE VI
NOTICE
SECTION 6.1 NOTICE BY THE COMPANY.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Debentures
pursuant to the provisions of this Article VI. Notwithstanding any of the
provisions of the Base Indenture and this First Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of the Base Indenture;
provided, however, that if the Trustee shall not have received the notice
provided for in this Article VI at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or
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interest on any Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1 FORM OF DEBENTURE.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL SECURITY, INSERT - THIS DEBENTURE
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE OR THE
CLEARING AGENCY. THIS DEBENTURE IS EXCHANGEABLE FOR DEBENTURES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE AS A WHOLE BY THE CLEARING
AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING
AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.]
[UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY DEBENTURE
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.]
LINCOLN NATIONAL CORPORATION
____% Junior Subordinated Deferrable Interest Debentures, Series X
-00-
00
Xx. X-0 $__________
CUSIP No. ____________
LINCOLN NATIONAL CORPORATION, a corporation organized and existing
under the laws of Indiana (hereinafter called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to The First National Bank of Chicago, as
Property Trustee of Lincoln National Capital IV, or registered assigns, the
principal sum of ____________________________ dollars ($____________) on
____________, 2003. The Company further promises to pay interest on said
principal sum from __________, 1998 or from the most recent interest payment
date (each such date, an "Interest Payment Date") on which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on February 16, May 16, August 16 and November 16 of each year,
commencing on November 16, 1998, initially at the rate of ___% per annum until
_______, 2001, and at the Reset Rate thereafter until the principal hereof shall
have become due and payable, plus Additional Interest, if any, until the
principal hereof is paid or duly provided for or made available for payment and
on any overdue principal and (without duplication and to the extent that payment
of such interest is enforceable under applicable law) on any overdue installment
of interest at the rate of ___% until _________, 2001, and at the Reset Rate
thereafter, compounded quarterly. The interest rate will be reset on the third
business day preceding __________, 2001 to the Reset Rate (as determined by the
Reset Agent). The amount of interest payable for any period will be computed on
the basis of twelve 30-day months and a 360-day year. The amount of interest
payable for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Debenture is not a Business Day, then
a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable. A "Business Day" shall mean any
day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in The City of New York are authorized or required by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee or the principal office of the Property Trustee under the
Trust Agreement hereinafter referred to for Lincoln National Capital IV is
closed for business. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities, as defined in the Indenture) is registered at the close
of business on the Regular Record Date for such interest installment, which in
the case of a Global Security shall be the close of business on the business day
next preceding such Interest Payment Date; provided, however, if pursuant to the
terms of the Indenture the Debentures are no longer represented by a Global
Security, the Company may select such regular record date for such interest
installment which shall be more than one Business Day but less than 60 Business
Days prior to an Interest Payment Date. Any such interest installment not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
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whose name this Debenture (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Debentures of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
So long as no Event of Default has occurred or is continuing under the
Indenture, the Company shall have the right at any time during the term of this
Debenture, from time to time, to defer the payment of interest on such Debenture
for a period not extending, in the aggregate, beyond the maturity date of this
Debenture (each an "Extension Period"), during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law); provided that during any such Extension
Period, the Company will not, and will not permit any Subsidiary of the Company
to, (i) declare or pay any dividends or distributions or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
outstanding capital stock or (ii) make any payment of principal of, interest or
premium, if any, on or repay, repurchase or redeem any debt security of the
Company that ranks pari passu with or junior in interest to this Debenture or
make any guarantee payments with respect to any guarantee by the Company of the
debt securities of any subsidiary of the Company if such guarantee ranks pari
passu with or junior in interest to the Debentures (other than (a) dividends or
distributions in Common Stock of the Company, (b) redemptions or purchases of
any rights pursuant to the Company's Rights Plan, or any successor to such
Rights Plan, and the declaration of a dividend of such rights or the issuance of
Stock under such plans in the future, (c) payments under any Lincoln Guarantee
(as defined in the Indenture), and (d) purchases of Common Stock related to the
issuance of Common Stock under any of the Company's benefit plans for its
directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period,
provided that no Extension Period shall extend beyond the Maturity of this
Debenture. At the end of an Extension Period, the Company shall pay all interest
then accrued and unpaid (together with the interest thereon at the rate of ___%
until ________, 2001 and at the Reset Rate thereafter to the extent that payment
of such interest is enforceable under applicable law). No interest shall be due
and payable during an Extension Period except at the end thereof.
Payment of the principal of (and premium, if any) and interest on this
Debenture will be made at the office or agency of the Company maintained for
that purpose in the United States, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Securities Register or (ii) by wire
transfer in immediately available funds at such place and to such account as may
be designated by the Person entitled thereto as specified in the Securities
Register. Notwithstanding the foregoing, so long as the Holder of this Debenture
is the Property Trustee or the Collateral Agent, the
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payment of the principal of (and premium, if any) and interest on this Debenture
will be made at such place and to such account as may be designated in writing
by the Property Trustee or the Collateral Agent.
The indebtedness evidenced by this Debenture is, to the extent provided
in the Indenture, subordinate and subject in right of payments to the prior
payment in full of all Senior Debt, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Debenture shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
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18
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: August ___, 1998
LINCOLN NATIONAL CORPORATION
By:_________________________
Name:
Title:
Attest:
_____________________________
Name:
Title:
This is one of the Debentures referred to in the within mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By:______________________________
Authorized Officer
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[REVERSE OF DEBENTURE]
This Debenture is one of a duly authorized issue of securities of the
Company (herein called the "Debentures"), issued and to be issued in one or more
series under a Junior Subordinated Indenture, dated as of May 1, 1996 (herein
called the "Base Indenture"), between the Company and The First National Bank of
Chicago, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), as supplemented by a First Supplemental
Indenture, dated August ___, 1998), (the Base Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the
Holders of the Debentures, and of the terms upon which the Debentures are, and
are to be, authenticated and delivered. This Debenture is one of the series
designated on the face hereof, limited in aggregate principal amount to
$____________.
All terms used in this Debenture that are defined in the Indenture or
in the Amended and Restated Trust Agreement, dated as of August ___, 1998 (the
"Trust Agreement"), for Lincoln National Capital IV among Lincoln National
Corporation, as Depositor, and the Trustees named therein, shall have the
meanings assigned to them in the Indenture or the Trust Agreement, as the case
may be.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem Debentures in whole (but not in part) at any time at a Redemption
Price per Debenture equal to the Redemption Amount plus accrued and unpaid
interest thereon, including Compounded Interest (each as defined herein), if
any, to the Tax Event Redemption Date. The Redemption Price shall be paid to
each Holder of the Debenture by the Company, no later than 12:00 noon, New York
City time, on the Tax Event Redemption Date, by check or wire transfer in
immediately available funds, at such place and to such account as may be
designated by each such Holder.
The Debentures are not entitled to the benefit of any sinking fund.
If a Failed Remarketing (as described in Section 5.4(b) of the Purchase
Contract Agreement and incorporated herein by reference) has occurred, each
holder of Trust Securities who holds such Trust Securities on the day
immediately following the Purchase Contract Settlement Date, shall have the
right on the Business Day immediately following __________, 2001, upon at least
three Business Days' prior notice, to require the Trust to distribute their pro
rata share of Debentures to the Exchange Agent and to require the Exchange Agent
to put such Debentures to the Company (the "Put Option"), on behalf of such
holders on __________, 2001 (the "Put Option Exercise Date") at a repayment
price of $25 per Preferred Security plus an amount equal to the accrued and
unpaid Distributions (including deferred distributions, if any) thereon to the
date of payment (the "Debenture Repayment Price").
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20
In order for the Debentures to be so repurchased, the Company must
receive, on or prior to 5:00 p.m. New York City Time on the third Business Day
immediately preceding the Put Option Exercise Date, at the then principal
executive offices of the Company, the Debentures to be repurchased with the form
entitled "Option to Elect Repayment" on the reverse of or otherwise accompanying
such Debentures duly completed. Any such notice received by the Trustee shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of the Debentures for repayment shall be determined by
the Company, whose determination shall be final and binding. The payment of the
Debenture Repayment Price in respect of such Debentures shall be made, either
through the Trustee or the Company acting as Paying Agent, no later than 12:00
noon, New York City time, on the Put Option Exercise Date.
If an Event of Default with respect to Debentures of this series shall
occur and be continuing, the principal of the Debentures of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge and
defeasance at any time of the entire indebtedness of this Debenture upon
compliance by the Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Debenture shall be conclusive and binding upon such Holder and
upon all future Holders of this Debenture and of any Debenture issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series may declare the principal amount (or, if the
Securities of this series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of this series) of all
the Securities of this series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided that,
in the case of the Securities of a series issued to a Lincoln Trust, if upon an
Event of Default, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of this series fail to declare the
principal of all the Securities of this series to be immediately due and
payable, the holders of at least 25% in aggregate liquidation amount
-17-
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of the corresponding series of Preferred Securities then outstanding shall have
such right by a notice in writing to the Company and the Trustee; and upon any
such declaration such specified amount of and the accrued interest (including
any Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article Thirteen of the Indenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Debenture at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Securities
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company maintained under Section 10.2 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture 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 Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Debentures of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Debentures of this series are exchangeable for a like aggregate principal amount
of Debentures of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company 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.
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The Company and, by its acceptance of this Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
THE INDENTURE AND THIS DEBENTURE 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.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay $_____ principal amount of the within Debenture, pursuant to its terms,
on the "Put Option Exercise Date," together with any interest thereon accrued
but unpaid to the date of repayment, to the undersigned at:
(Please print or type name and address of the undersigned)
and to issue to the undersigned, pursuant to the terms of the Debenture, a new
Debenture or Debentures representing the remaining aggregate principal amount of
this Debenture.
For this Option to Elect Repayment to be effective, this Debenture with the
Option to Elect Repayment duly completed must be received by the Company at its
principal executive office, Attn: Secretary, no later than 5:00 p.m. on
__________, 2001.
Dated: Signature:_______________________
Signature Guarantee:_____________
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Debenture without alternation or
enlargement or any change whatsoever.
SIGNATURE GUARANTEE
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.
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----------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Debenture to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
agent to transfer this Debenture on the books of the Trust. The agent may
substitute another to act for him or her.
Date:_________________
Signature:______________________
Signature Guarantee:____________
(Sign exactly as your name appears on the other side of this Debenture)
SIGNATURE GUARANTEE
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.
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ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount not to exceed $206,186,000
($237,113,850 if the Underwriters' over-allotment option pursuant to the
Underwriting Agreement and the Pricing Agreement is exercised in full) may, upon
execution of this First Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chief Executive Officer, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of the year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 RATIFICATION OF INDENTURE.
The Base Indenture as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Base Indenture in the manner
and to the extent herein and therein provided.
SECTION 9.2 TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
SECTION 9.3 GOVERNING LAW.
This First Supplemental Indenture and each Debenture shall be deemed to
be a contract made under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 9.4 SEPARABILITY.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures 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 First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the
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Debentures shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 9.5 COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 9.6 GUARANTEE AGREEMENT AND TRUST AGREEMENT.
The Guarantee Agreement and the Trust Agreement shall be deemed to be
specifically described in this First Supplemental Indenture for purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE X
REMARKETING
SECTION 10.1 EFFECTIVENESS OF THIS ARTICLE.
This Article Ten shall only become effective upon a Dissolution Event
which occurs prior to the Remarketing of the Preferred Securities pursuant to
this Agreement. Until such Dissolution Event, this Article Ten shall have no
effect.
SECTION 10.2 REMARKETING PROCEDURES.
(a) The Company will request, not later than 15 nor more than 30
calendar days prior to the Remarketing Date that the Clearing Agency notify the
Holders of the Debentures and the holders of Income PRIDES and Growth PRIDES of
the Remarketing and of the procedures that must be followed if a Holder of
Debentures wishes to exercise such Holder's rights with respect to the Put
Option if there is a Failed Remarketing.
(b) Not later than 5:00 P.M., New York City time, on the fifth
Business Day immediately preceding the Purchase Contract Settlement Date, each
Holder of the Debentures may elect to have Debentures held by such Holder
remarketed. Under Section 5.4 of the Purchase Contract Agreement, Holders of
Income PRIDES that do not give notice of intention to make a Cash Settlement of
their related Purchase Contracts shall be deemed to have consented to the
disposition of the Debentures comprising a component of such Income PRIDES.
Holders of Debentures that are not a component of Income PRIDES shall give
notice of their election to have such Debentures remarketed to the Custodial
Agent pursuant to the Pledge Agreement. Any such notice shall be irrevocable
after 5:00 P.M., New York City time, on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date and may not be conditioned upon
the level at which the Reset Rate is established. Promptly after 5:30 P.M., New
York City time, on such fifth Business Day, the Property Trustee, based on the
notices received by it prior
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to such time (including notices from the Purchase Contract Agent as to Purchase
Contracts for which Cash Settlement has been elected), shall notify the Trust,
the Company and the Remarketing Agent of the number of Debentures to be tendered
for purchase.
(c) If any Holder of Income PRIDES does not give a notice of its
intention to make a Cash Settlement or gives a notice of election to tender
Debentures as described in Section 10.2(b), the Debentures of such Holder shall
be deemed tendered, notwithstanding any failure by such Holder to deliver or
properly deliver such Debentures to the Remarketing Agent for purchase.
(d) The right of each Holder to have Debentures tendered for
purchase shall be limited to the extent that (i) the Remarketing Agent conducts
a remarketing pursuant to the terms of the Remarketing Agreement, (ii)
Debentures tendered have not been called for redemption, (iii) the Remarketing
Agent is able to find a purchaser or purchasers for tendered Debentures and (iv)
such purchaser or purchasers deliver the purchase price therefor to the
Remarketing Agent.
(e) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket at a price equal to approximately
100.5% of the aggregate principal amount thereof, Debentures tendered or deemed
tendered for purchase.
(f) If none of the Holders elect to have Debentures held by them
remarketed, the Reset Rate shall be the rate determined by the Remarketing
Agent, subject to the terms of the Remarketing Agreement, as the rate that would
have been established had a remarketing been held on the Remarketing Date.
(g) If the Remarketing Agent has determined that it will be able to
remarket all Debentures tendered or deemed tendered prior to 4:00 P.M., New York
City time, on the Remarketing Date, the Remarketing Agent shall determine the
Reset Rate, which shall be the rate per annum (rounded to the nearest
one-thousandth (0.001) of one percent per annum) which the Remarketing Agent
determines, subject to the terms of the Remarketing Agreement, to be the lowest
rate per annum that will enable it to remarket all Debentures tendered or deemed
tendered for remarketing.
(h) If, by 4:00 P.M., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all Debentures tendered or deemed
tendered for purchase, a failed remarketing ("Failed Remarketing") shall be
deemed to have occurred and the Remarketing Agent shall so advise by telephone
the Collateral Agent, Company, Property Trustee, Delaware Trustee and Clearing
Agency.
(i) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Collateral Agent, Company,
Property Trustee, Delaware Trustee and Clearing Agency of the Reset Rate
determined in the Remarketing and the number of Debentures sold in the
remarketing, (ii) each purchaser (or the Clearing Agency Participant thereof) of
the Reset
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Rate and the number of Debentures such purchaser is to purchase and (iii) each
purchaser to give instructions to its Clearing Agency Participant to pay the
purchase price on the Purchase Contract Settlement Date in same day funds
against delivery of the Debentures purchased through the facilities of the
Clearing Agency.
(j) In accordance with the Clearing Agency's normal procedures, on
the Purchase Contract Settlement Date, the transactions described above with
respect to each Debenture tendered for purchase and sold in the remarketing
shall be executed through the Clearing Agency, and the accounts of the
respective Clearing Agency Participants shall be debited and credited and such
Debentures delivered by book entry as necessary to effect purchases and sales of
such Debentures. The Clearing Agency shall make payment in accordance with its
normal procedures.
(k) If any Holder selling Debentures in the remarketing fails to
deliver such Debentures, the Clearing Agency Participant of such selling Holder
and of any other person that was to have purchased Debentures in the remarketing
may deliver to any such other person a number of Debentures that is less than
the number of Debentures that otherwise was to be purchased by such person. In
such event, the number of Debentures to be so delivered shall be determined by
such Clearing Agency Participant, and delivery of such lesser number of
Debentures shall constitute good delivery.
(l) The Remarketing Agent is not obligated to purchase any
Debentures that would otherwise remain unsold in a remarketing. Neither the
Trust, any Trustee, the Company nor the Remarketing Agent shall be obligated in
any case to provide funds to make payment upon tender of Debentures for
remarketing.
(m) The tender and settlement procedures set in this Section 10.2,
including provisions for payment by purchasers of Debentures in the remarketing,
shall be subject to modification, notwithstanding any provision to the contrary
set forth herein, to the extent required by the Clearing Agency or if the
book-entry system is no longer available for the Debentures at the time of the
remarketing, to facilitate the tendering and remarketing of Debentures in
certificated form. In addition, the Remarketing Agent may, notwithstanding any
provision to the contrary set forth herein, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the acknowledgments
and as of the day and year first above written.
LINCOLN NATIONAL CORPORATION, as
Issuer
By /s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
By /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By /s/ XXXX X. XXXXXXXXXXX
--------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
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