EXHIBIT 4.11
UNION PLANTERS CORPORATION
AND
[__________],
AS WARRANT AGENT
WARRANT AGREEMENT - DEBT SECURITIES
DATED AS OF [______], 200[_]
THIS WARRANT AGREEMENT dated as of [__________], 200[_] between Union
Planters Corporation, a Tennessee corporation (hereinafter called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to) and _________________________, as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, the Company has entered into an indenture (the "Indenture")
dated as of ________, 200[_], between the Company and Bank One Trust Company,
N.A., as trustee (the "Indenture Trustee"), providing for the issuance from time
to time of its unsecured [senior] [subordinated] debentures, notes or other
evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities"), to be
issued in one or more series as provided in the [Senior] [Subordinated]
Indenture; [if Warrant Securities are not under same Indenture as Debt
Securities to which they are attached -- and an Indenture (the "[Senior]
[Subordinated] Indenture," the Senior and Subordinated Indentures being referred
to collectively as the "Indentures") dated as of __________, 200_ between the
Company and Bank One Trust Company, N.A., as trustee (the "[Senior]
[Subordinated] Trustee," (the Senior and Subordinated Trustees being referred to
collectively as the "Trustees"), providing for the issuance from time to time of
its [senior] [subordinated] debentures, notes or other evidences of indebtedness
(the "[Senior] [Subordinated] Debt Securities", the [Senior] and [Subordinated]
Debt Securities being referred to collectively as the "Debt Securities"), to be
issued in one or more series as provided in the [________] Indenture]; and
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 Debt Securities 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 a Warrant Security in the principal amount of
____________. [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.]
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SECTION 1.2 Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in [registered]
[bearer] 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 in 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 [the bearer of such Warrant Certificate] [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 [the bearer] [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
principal amount not exceeding ____________ aggregate principal amount of
Warrant Securities (except as provided in Sections 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 __________ aggregate principal amount of Warrant
Securities and shall deliver such Warrant Certificates to or upon the order of
the Company. Subsequent to such 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
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and other variations as the officers executing such Warrant Certificates may
determined, 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 shall be __________ plus [accrued
amortization of the original issue discount] [accrued interest] from __________.
During the period from __________ through and including __________, the exercise
price of each Warrant will be __________ plus [accrued amortization of the
original issue discount] [accrued interest] from ____________. [In each case,
the original issue discount will be amortized at a ______% annual rate, computed
on an annual basis using the "interest" method and using a 360-day year
consisting of twelve 30-day months]. Such exercise price of Warrant Securities
is referred to in this Agreement as the "Warrant Price". [The original issue
discount for each __________ principal amount of Warrant Securities is
____________.]
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 Certificate 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] [applicable currency,] [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 [including any applicable certifications if the Warrant Securities are
issuable in bearer form]. 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 [if
non-dollar denominated funds -- or in such other account designated by the
Company] 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.
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(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating to
the Warrant Securities] 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 reasonable require.
(c) As promptly as practicable after the exercise of any Warrant, the
Company shall issue, pursuant to the Indenture, in authorized denominations to
or upon the order of the holder of the Warrant Certificate evidencing such
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.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1 No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates.
No Warrant Certificates or Warrant evidenced thereby shall entitle the
holder thereof to any of the rights of a holder of Warrant Securities,
including, without limitation, the right to receive the payment of principal of,
premium, if any, or interest, if any, on Warrant Securities or to enforce any of
the covenants in the Indenture relating to the Warrant Securities.
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.
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Notwithstanding any of the provisions of this Agreement, any holder of
a Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
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 Consolidation, Merger, Sale or Conveyance.
If at any time there shall be a consolidation merger, sale or
conveyance to which Article [__] of the Indenture relating to the Warrant
Securities applies, then in any such event the successor or assuming corporation
referred to therein shall succeed to and be substituted for the Company, with
the same effect, subject to such Indenture, as if it had been named herein and
in the Warrant as the Company; the Company shall thereupon be relieved of any
further obligation hereunder or under the Warrants, and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. Such successor or assuming corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Warrants issuable hereunder which theretofore shall
not have been signed by the Company, and may execute and deliver Warrant
Securities in its own name pursuant to such Indenture, 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
consolidation, merger, sale or conveyance, 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 consolidation, merger, sale or conveyance
complies with the provisions of this Section 3.4 and such Indenture.
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
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transfer] which will result in the issuance of a Warrant Certificate evidencing
a fraction of a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange [or registration of
transfer] of Warrant Certificates shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificate surrendered for such exchange [or
registration of transfer].
SECTION 4.2 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 or 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,] [if registered Warrants -- and prior to due presentment of a
Warrant Certificate for registration for registration of transfer,] the Company,
the Warrant Agent and all other persons may treat the holder of a Warrant
Certificate as the owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
SECTION 4.3 Cancellation of Warrant Certificates.
Any Warrant Certificates 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
for reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Warrant Agent without negligence, bad faith or breach of this
Agreement on its part 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.
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(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in the Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals 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
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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 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 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 be a party, or any corporation to which
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
8
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.
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 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.
9
The descriptive headings of the several Articles and Sections of this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
SECTION 6.9 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.
10
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
which are not immediately detachable. Certificate cannot be transferred or
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 PLATNERS CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. NEW YORK CITY TIME, ON _______________
No. __________ __________ Warrants
This certifies that [the bearer is the] [_________________or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the [bearer] [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 _______________, __________
principal amount of [Title of Warrant Securities] (the "Warrant Securities"), of
Union Planters Corporation (the "Company"), issued and to be issued under the
Indenture (as hereinafter defined), on the following basis: during the period
from _______________ through and including _______________, the exercise price
of each Warrant will be ________ plus [accrued amortization of the original
issue discount] [accrued interest] from _______________; during the period from
_______________ through and including _______________, the exercise price of
each Warrant will be ________ plus [accrued amortization of the original issue
discount] [accrued interest] from _______________; [in each case, the original
issue discount will be amortized at a ___% annual rate, computed on an annual
basis using the "interest" method and using a 360-day year consisting of twelve
30-day months] (the "Warrant Price"). [The original issue discount for each
________ principal amount of Warrant Securities is ________.] The holder may
exercise the Warrants evidenced hereby by providing certain information set
forth on the back hereof, including any applicable certifications if the Warrant
Securities are issuable in bearer form, and by paying in full [in lawful money
of the United States of America] [applicable currency] [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 bearer of this Warrant Certificate] [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
A-1
Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form in denominations
of ____________ and any integral multiples thereof. Upon any exercise of fewer
than all of the Warrants evidenced by this Warrant Certificate, there shall be
issued to the holder hereof a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of ____________ (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at _______________].
The Warrant Securities to be issued and delivered upon the exercise of
the Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with an indenture (the "Indenture"), dated as of [____________,
200_], between the Company and Bank One Trust Company, N.A., as trustee (the
"Trustee"), and will be subject to the terms and provisions contained in the
Indenture. Copies of the Indenture and the form of the Warrant Securities are on
file at the corporate trust office of the Trustee [and at _______________].
[If Offered Securities with 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
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.] [effected by delivery and the Company and the Warrant Agent may
treat the bearer hereof as the owner for all purposes.]
[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
Warrants 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 principal of, premium, if any, or interest, if
any, on the Warrant Securities or to enforce any of the covenants of the
Indenture.
A-2
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
Dated as of _____________, 20__.
UNION PLANTERS CORPORATION
By:___________________________
Name:
Title:
Attest:___________________________
Title:
[____________________________]
By:___________________________
Name:
Title:
Attest:___________________________
Title:
A-3
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay in
[Dollars] [applicable currency] [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 ____________
principal amount 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] [applicable currency] [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 _________________________, [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-4
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-5
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-6
