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Exhibit 4.3.1
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AETNA SERVICES, INC.,
AETNA INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
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__ SUPPLEMENTAL INDENTURE
Dated as of __
TO
INDENTURE
Dated as of June __, 1998
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__% Junior Subordinated Debentures
Due 20__
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__ Supplemental INDENTURE, dated as of the __ day of __, 199__ (this "__
Supplemental Indenture"), among and between AETNA SERVICES, INC., a corporation
duly organized and existing under the laws of the State of Connecticut
(hereinafter sometimes referred to as the "Company"), AETNA INC., a corporation
duly organized and existing under the laws of the State of Connecticut
(hereinafter sometimes referred to as the "Guarantor") and THE FIRST NATIONAL
BANK OF CHICAGO, a National Banking Association, as trustee (hereinafter
sometimes referred to as the "Trustee") under the Indenture dated as of June __,
1998 among and between the Company, the Guarantor and the Trustee (the
"Indenture") (as set forth in Section 7.01 hereof and except as otherwise set
forth herein, all terms used and not defined herein are used as defined in the
Indenture).
WHEREAS, the Company and the Guarantor have executed and delivered the
Indenture to the Trustee to provide for the future issuance and guarantee of its
junior subordinated debentures (the "Debentures"), said Debentures to be issued
from time to time in such series as may be determined by the Company and the
Guarantor under the Indenture, in an unlimited aggregate principal amount which
may be authenticated and delivered thereunder as in the Indenture provided; and
WHEREAS, pursuant to the terms of the Indenture, the Company and the
Guarantor desire to provide for the establishment of a new series of Debentures
to be known as the Company's __% Junior Subordinated Debentures due 20__ (said
series being hereinafter referred to as the "Series __% Debentures"), the form
and substance of such Series __% Debentures and the terms, provisions and
conditions thereof to be as provided in the Indenture and in this __
Supplemental Indenture; and
WHEREAS, the Company has caused to be formed Aetna Capital Trust __
("Aetna Capital __") as a statutory business trust under the Business Trust Act
of the State of Delaware (12 Del. Code ss. 3801 et seq.) pursuant to a
declaration of trust dated May 7, 1998 (the "Original Declaration") and the
filing of a certificate of trust with the Secretary of State of the State of
Delaware on May 7, 1998; and
WHEREAS, the Original Declaration is to be amended and restated in its
entirety pursuant to an Amended and Restated Declaration of Trust dated as of
__, 199__ (such Amended and Restated Declaration of Trust, as amended from time
to time, the "Declaration of Trust"); and
WHEREAS, Aetna Capital __ desires to issue its __% Preferred Trust
Securities (the "Preferred Securities") and sell such Preferred Securities to
initial purchasers; and
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WHEREAS, pursuant to the Preferred Securities Guarantees (the "Preferred
Securities Guarantees"), each of the Company and the Guarantor have irrevocably
and unconditionally guaranteed, to the extent set forth therein, to pay in full,
to the holders of the Preferred Securities, the Guarantee Payments (as defined
therein), to the extent not paid by Aetna Capital __; and
WHEREAS, in connection with such purchases of Preferred Securities and the
related purchase by the Company of the Common Securities (as defined in the
Declaration of Trust) of Aetna Capital __, Aetna Capital __ will purchase as
trust assets Series __% Debentures; and
WHEREAS, pursuant to the Declaration of Trust, the legal title to the
Series __% Debentures shall be owned and held of record in the name of The First
National Bank of Chicago or its successor under the Declaration of Trust, as
Property Trustee (the "Property Trustee"), in trust for the benefit of holders
of the Preferred Securities and the Common Securities; and
WHEREAS, upon the occurrence of a Special Event (as defined in the
Declaration of Trust) the Regular Trustees (as defined in the Declaration of
Trust) of Aetna Capital __ shall, unless the Series __% Debentures are redeemed
as described herein, dissolve Aetna Capital __ and cause to be distributed to
the holders of the Preferred Securities and Common Securities, on a Pro Rata
basis (determined as provided in the terms of the Preferred Securities and
Common Securities attached as Exhibits B and C to the Declaration of Trust),
Series __% Debentures and in connection with a Liquidation Distribution (as
defined in the Declaration of Trust) the Regular Trustees may cause to be
distributed to holders of Preferred Securities and Common Securities, on such a
Pro Rata basis, Series __% Debentures (each a "Dissolution Event"); and
WHEREAS, the Company and the Guarantor desire and have requested the
Trustee to join with them in the execution and delivery of this __ Supplemental
Indenture, and all requirements necessary to make this __ Supplemental Indenture
a valid instrument, in accordance with its terms, and to make the Series __%
Debentures, when executed by the Company and the Guarantor and authenticated and
delivered by the Trustee, the valid obligations of the Company and the
Guarantor, have been performed and fulfilled, and the execution and delivery
hereof have been in all respects duly authorized;
NOW THEREFORE, in consideration of the purchase and acceptance of the
Series __% Debentures by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Series __%
Debentures and the terms, provisions and conditions thereof, the Company and the
Guarantor covenant and agree with the Trustee as follows:
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ARTICLE 1
GENERAL TERMS AND CONDITIONS OF THE SERIES __% DEBENTURES
SECTION 1.01. There is hereby authorized a series of Debentures designated
the "__% Junior Subordinated Debentures Due 20__", limited in aggregate
principal amount to $__ (except as provided in this Section 1.01 and 6.01). Upon
exercise of the overallotment option set forth in the Underwriting Agreement (as
defined in the Declaration of Trust), additional Series __% Debentures in the
aggregate principal amount of up to $__ may be executed by the Company and the
Guarantor and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Series __% Debentures to or upon the
written order of the Company, which order shall be accompanied by evidence
satisfactory to the Trustee that the overallotment option has been exercised.
The Series __% Debentures shall mature and the principal shall be due and
payable together with all accrued and unpaid interest thereon, including
Compounded Interest (as hereinafter defined) on __, 20__.
SECTION 1.02. (a) Except as provided in Section 1.02(b), the Series __%
Debentures shall be issued in fully registered certificated form without
interest coupons. Principal and interest on the Series __% Debentures issued in
certificated form will be payable, the transfer of such Series __% Debentures
will be registrable and such Series __% Debentures will be exchangeable for
Series __% Debentures bearing identical terms and provisions at the office or
agency of the Company in the Place of Payment; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture register and
that the payment of principal with respect to the Series __% Debentures will
only be made upon surrender of the Series __% Debentures to the Trustee.
Notwithstanding the foregoing, so long as the Property Trustee is the legal
owner and record holder of the Series __% Debentures, the payment of the
principal of and interest (including Compounded Interest, if any) on the Series
__% Debentures held by the Property Trustee will be made by the Company in
immediately available funds on the payment date therefor at such place and to
the Property Account (as defined in the Declaration of Trust) established and
maintained by the Property Trustee pursuant to the Declaration of Trust.
(b) In connection with a Dissolution Event;
(i) Series __% Debentures in certificated form may be presented to
the Trustee by the Property Trustee in exchange for a Global Debenture
representing the Series __% Debentures in an aggregate principal amount
equal to all Outstanding Series __% Debentures, to be registered in the
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name of the Depositary, or its nominee, and delivered by the Trustee to
the Depositary for crediting to the accounts of its participants pursuant
to the instructions of the Regular Trustees (as defined in the Declaration
of Trust). The Company and the Guarantor upon any such presentation shall
execute a Global Debenture representing the Series __% Debentures in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this __
Supplemental Indenture. Payments on the Series __% Debentures issued as a
Global Debenture will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, Series __% Debentures in certificated form may be
presented to the Trustee by the Property Trustee and any Preferred
Security Certificate (as defined in the Declaration of Trust) which
represents Preferred Securities other than Preferred Securities held by
the Clearing Agency (as defined in the Declaration of Trust) or its
nominee ("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Series __% 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 Certificate is presented to the
Debenture Registrar for transfer or reissuance at which time such
Preferred Security Certificate will be cancelled and a Series __%
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
canceled will be executed by the Company and the Guarantor and delivered
to the Trustee for authentication and delivery in accordance with the
Indenture and this __ Supplemental Indenture. On issue of such Series __%
Debentures, Series __% Debentures with an equivalent aggregate amount that
were presented by the Property Trustee to the Trustee will be deemed to
have been canceled.
SECTION 1.03. Each Series __% Debenture will bear interest at the rate of
__% per annum from __, 199__ 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 same rate per annum, compounded monthly, payable (subject to the
provisions of Article Three) monthly in arrears on the last day of each month
(each, an "Interest Payment Date", commencing on __, 199__), to the person in
whose name such Series __% Debenture or any predecessor Series __% Debenture is
registered, at the close of business on the regular record date for such
interest
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installment, which, except as set forth below, shall be, in respect of any
Series __% Debentures of which the Property Trustee is the registered holder of
or a Global Debenture, the close of business on the business day next preceding
that Interest Payment Date. Notwithstanding the foregoing sentence, if the
Preferred Securities are no longer in book-entry only form or if pursuant to the
provisions of Section 2.11(c) of the Indenture the Series __% Debentures are not
represented by a Global Debenture, the regular record dates for such interest
installment shall be the close of business on the last day of the month next
preceding that Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such regular record date, and may be paid to the person in
whose name the Series __% Debenture (or one or more Predecessor Debentures) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of the Series __% Debentures not less than 10
days prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Series __% Debentures may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months and for any period shorter than
a 30-day monthly interest period for which interest is computed, the amount of
interest payable will be computed on the basis of the actual number of days
elapsed. In the event that any date on which interest is payable on the Series
__% Debentures is not a business day, then payment of interest payable on such
date will be made on the next succeeding day which is a business day (and
without any interest or other payment in respect of any such delay), except
that, if such business day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding business day, in each case with the
same force and effect as if made on such date. Principal of and any premium and
interest on the Series __% Debentures shall be payable at The First National
Bank of Chicago, 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 (the "Place of
Payment").
ARTICLE 2
OPTIONAL REDEMPTION OF THE SERIES __% DEBENTURES
SECTION 2.01. Except as provided in Section 2.02, Series ` % Debentures
may not be redeemed by the Company prior to _, 20_. Subject to the terms of
Article Three of the Indenture, the Company shall have the right to redeem the
Series __% Debentures, in whole or in part, from time to time, on or
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after __, 20__, at a redemption price equal to 100% of the principal amount to
be redeemed plus any accrued and unpaid interest thereon, including Compounded
Interest, if any, to the date of such redemption (the "Optional Redemption
Price"). Any redemption pursuant to this paragraph will be made upon not less
than 30 nor more than 60 days' notice, at the Optional Redemption Price.
SECTION 2.02. If, at any time, a Tax Event (as defined below) shall occur
or be continuing and (i) the Regular Trustees and the Company shall have
received an opinion (a "Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a result of a Tax
Event, there is more than an insubstantial risk that the Company would be
precluded from deducting the interest on the Series __% Debentures for United
States federal income tax purposes even if the Series __% Debentures were
distributed to the holders of Preferred Securities and Common Securities in
liquidation of such holder's interest in Aetna Capital __ as set forth in the
Declaration of Trust or (ii) the Regular Trustees shall have been informed by
such tax counsel that a No Recognition Opinion (as defined below) cannot be
delivered to Aetna Capital __, the Company shall have the right at any time,
upon not less than 30 nor more than 60 days' notice, to redeem the Series __%
Debentures in whole or in part for cash at the Optional Redemption Price within
90 days following the occurrence of such Tax Event; provided, however, that, if
at the time there is available to the Company or the Regular Trustees on behalf
of Aetna Capital __ the opportunity to eliminate, within such 90 day period, the
Tax Event by taking some ministerial action ("Ministerial Action"), such as
filing a form or making an election, or pursuing some other similar reasonable
measure, which has no adverse effect on Aetna Capital __, the Company or the
holders of the Preferred Securities, the Company or the Regular Trustees on
behalf of Aetna Capital __ will pursue such measure in lieu of redemption and
provided further that the Company shall have no right to redeem the Series __%
Debentures while the Regular Trustees on behalf of Aetna Capital __ are pursuing
any such Ministerial Action.
"Tax Event" means that the Company and the Regular Trustees shall have
obtained an opinion of nationally recognized independent tax counsel experienced
in such matters (a "Dissolution Tax Opinion") to the effect that on or after __,
199__ as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
any amendment to, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any
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action taken by any governmental agency or regulatory authority, which amendment
or change is enacted, promulgated, issued or announced or which interpretation
or pronouncement is issued or announced or which action is taken, in each case
on or after __, 199__ there is more than an insubstantial risk that (i) Aetna
Capital __ is, or will be within 90 days of the date thereof, subject to United
States federal income tax with respect to income accrued or received on the
Series ` % Debentures, (ii) Aetna Capital __ is, or will be within 90 days of
the date thereof, subject to more than a de minimis amount of taxes, duties or
other governmental charges or (iii) interest payable by the Company to Aetna
Capital __ on the Series __% Debentures is not, or within 90 days of the date
thereof will not be, deductible by the Company for United States federal income
tax purposes.
"No Recognition Opinion" means an opinion of a nationally recognized
independent tax counsel experienced in such matters, which opinion may rely on
any then applicable published revenue ruling of the Internal Revenue Service, to
the effect that the holders of the Preferred Securities will not recognize any
gain or loss for United States federal income tax purposes as a result of a
dissolution of Aetna Capital __ and distribution of the Series __% Debentures as
provided in the Declaration of Trust.
SECTION 2.03. If the Series __% Debentures are only partially redeemed
pursuant to this Article Two, the Series __% Debentures will be redeemed pro
rata or by lot or by any other method utilized by the Trustee, provided that if
at the time of redemption, the Series __% Debentures are registered as a Global
Debenture, the Depository shall determine by lot the principal amount of such
Series __% Debentures held by each Debenture Holder to be redeemed in accordance
with its customary procedures. Notwithstanding the foregoing, if a partial
redemption of the Series __% Debentures would result in the delisting of the
Preferred Securities by any national securities exchange or other organization
on which the Preferred Securities are then listed, the Company shall not be
permitted to effect such partial redemption and will only redeem the Series __%
Debentures in whole.
ARTICLE 3
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 3.01. So long as the Company is not in default in the payment of
interest on the Series __% Debentures, the Company shall have the right, at any
time during the term of the Series __% Debentures, from time to time to extend
the interest payment period of such Series __% Debentures for up to 60
consecutive
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monthly interest periods (the "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest accrued and unpaid thereon
(together with interest thereon at the rate of __% per annum to the extent
permitted by applicable law, compounded monthly ("Compounded Interest")). During
such Extended Interest Payment Period the Company and the Guarantor shall not
declare or pay any dividend on, or redeem, purchase, acquire or make a
distribution or liquidation payment with respect to, any of its capital stock or
make any guarantee payments with respect to the foregoing (other than (i)
payments under the Preferred Securities Guarantee or the equivalent preferred
securities guarantees respecting preferred securities of Aetna Capital Trust
__, __ or __, (ii) acquisitions of shares of the Company's or the Guarantor's
common stock in connection with the satisfaction by the Company or the
Guarantor, as the case may be, of its obligations under any employee benefit
plan, (iii) stock repurchases in the open market, (iv) redemptions of any share
purchase rights issued by the Company or the Guarantor or the declaration of a
dividend of share purchase rights, (v) accrued dividends (and cash in lieu of
fractional shares) upon the conversion of any preferred stock of the Company or
the Guarantor as may be outstanding from time to time, in each case in
accordance with the terms of such stock and (vi) stock dividends paid by the
Company or the Guarantor or any dividends paid by the Company provided the
Company is a direct or indirect wholly owned subsidiary of Guarantor). Prior to
the termination of any such Extended Interest Payment Period, the Company may
pay all or any portion of the interest accrued on the Series __% Debentures on
any Interest Payment Date to holders of record on the regular record date for
such Interest Payment Date or from time to time further extend such Period;
provided that such Period together with all such further extensions thereof
shall not exceed 60 consecutive monthly interest periods. Upon the termination
of any Extended Interest Payment Period and upon the payment of all accrued and
unpaid interest then due, together with Compounded Interest, the Company may
select a new Extended Interest Payment Period, subject to the foregoing
requirements. However, if the Company establishes a trust pursuant to Section
11.01(b) of the Indenture, it shall be permitted at the date of establishment to
extend the interest payment period for only one Extended Interest Payment Period
(including any Extended Interest Payment Period outstanding at the date of such
establishment). No interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof. At the end of the Extended Interest
Payment Period the Company shall pay all interest accrued and unpaid on the
Series __% Debentures including any Compounded Interest which shall be payable
to the holders of the Series __% Debentures in whose names the Series __%
Debentures are registered in the Debenture register on the first record date
after the end of the Extended Interest Payment Period.
SECTION 3.02. (a) So long as the Property Trustee is the legal owner and
holder of record of the Series __% Debentures, at the time the Company selects
an Extended Interest Payment Period, the Company shall give both the Property
Trustee and the Trustee written notice of its selection of such Extended
Interest Payment Period one Business Day prior to the earlier of (i) the next
succeeding
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date on which distributions on the Preferred Securities are payable or (ii) the
date Aetna Capital __ is required to give notice of the record date or the date
such distributions are payable to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities, but in any event not less than one Business Day prior to such record
date. The Company shall cause Aetna Capital __ to give notice of the Company's
election of such Extended Interest Payment Period to the holders of the
Preferred Securities.
(b) If as a result of a Dissolution Event Series __% Debentures have been
distributed to holders of Preferred Securities and Common Securities, at the
time the Company elects an Extended Interest Payment Period, the Company shall
give the holders of the Series __% Debentures and the Trustee written notice of
its election of such Extended Interest Payment Period at least 10 Business Days
prior to 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 New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Series __% Debentures.
SECTION 3.03. The month in which any notice is given pursuant to Section
3.02 shall be counted as one of the 60 months permitted in the maximum Extended
Interest Payment Period permitted under this Article Three.
ARTICLE 4
COVENANTS APPLICABLE TO SERIES __% DEBENTURES
SECTION 4.01. So long as any of the Series __% Debentures remain
outstanding, the Company and the Guarantor shall not declare or pay any dividend
on, or redeem, purchase, acquire or make a distribution or liquidation payment
with respect to, any of its capital stock or make any guarantee payments with
respect to the foregoing (other than (i) payments under the Preferred Securities
Guarantee or the equivalent preferred securities guarantees respecting preferred
securities of Aetna Capital Trust __, __ or __, (ii) acquisitions of shares of
the Company's or the Guarantor's common stock in connection with the
satisfaction by the Company or the Guarantor, as the case may be, of its
obligations under any employee benefit plan, (iii) stock repurchases in the open
market, (iv) redemptions of any share purchase rights issued by the Company or
the Guarantor or the declaration of a dividend of share purchase rights, (v)
accrued dividends (and cash in lieu of fractional shares) upon the conversion of
any preferred stock of the Company or the Guarantor as may be outstanding from
time to time, in each case in accordance with the terms of such stock and (vi)
stock dividends paid by the Company or the Guarantor or any dividends paid by
the Company provided the Company is a direct or indirect wholly owned subsidiary
of the Guarantor), if at such time (a) the Company and the Guarantor shall be in
default with respect to their payment obligations under the Preferred Securities
Guarantee, (b) there shall have occurred and be continuing an Event of Default
with respect to the Series __% Debentures or (c) the Company shall have given
notice of its election of an Extended Interest Payment Period (as defined
herein) and such period, or any extension thereof, is continuing.
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The covenant set forth in the preceding paragraph shall be deemed to be
included in the recital of provisions of the Indenture set forth in clause (B)
of Section 11.01(b) thereof, and shall therefore cease to be binding upon the
Company and the Guarantor in the event of covenant defeasance.
SECTION 4.02. In connection with the distribution of the Series __%
Debentures to the holders of the Preferred Securities upon a Dissolution Event,
the Company and the Guarantor will use their best efforts to list such Series
__% Debentures on the New York Stock Exchange, if the Preferred Securities are
then listed and traded on the New York Stock Exchange, or on such other exchange
as the Preferred Securities are then listed and traded.
SECTION 4.03. The Company and the Guarantor covenant and agree for the
benefit of the holders of the Preferred Securities to comply fully with all of
their respective obligations and agreements under the Declaration of Trust,
including, without limitation, their obligations under Article 4 thereof.
SECTION 4.04. Prior to the distribution of Series __% Debentures to the
holders of Preferred Securities upon a Dissolution Event, the Company and the
Guarantor covenant and agree for the benefit of the holders of the Preferred
Securities (i) not to cause or permit the Common Securities to be transferred
except as permitted by the Declaration of Trust and (ii) that they will use
reasonable efforts to cause Aetna Capital __ to continue to be treated as a
grantor trust for United States federal income tax purposes, except in
connection with a distribution of the Series __% Debentures as provided in
the Declaration of Trust.
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ARTICLE 5
FORM OF SERIES __% DEBENTURES
SECTION 5.01. The Series __% Debentures and the Guarantor's Guarantees and
the Trustee's Certificate of Authentication to be endorsed on the Series __%
Debentures are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE NOTE IS TO BE A GLOBAL DEBENTURE, INSERT: This Debenture is a
Global Debenture within the meaning of the Indenture hereinafter referred to and
is registered in the name of a Depositary or a nominee of a Depositary. This
Debenture is exchangeable for Debentures registered in the name of a person
other than the Depositary 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 Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative to 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.]
No. $
CUSIP NO. _________
AETNA SERVICES, INC.
AETNA, INC.
__% JUNIOR SUBORDINATED DEBENTURE
DUE 20__
Aetna Services, Inc., a corporation duly organized and existing under the
laws of the State of Connecticut (herein referred to as the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
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to), for value received, hereby promises to pay to __, or registered assigns,
the principal sum of __ Dollars on __, 20__, and to pay interest on said
principal sum from __, 199__ or from the most recent interest payment date (each
such date, an "Interest Payment Date") to which interest has been paid or duly
provided for, monthly (subject to deferral as set forth herein) in arrears on
the last day of each month commencing __, 199__ at the rate of __% per annum
plus Compounded Interest, if any, until the principal hereof shall have become
due and payable, and on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months and for any
period shorter than a 30-day monthly interest period for which interest is
computed, the amount of interest payable will be computed on the basis of the
actual number of days elapsed. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. 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 Debentures, as defined in said
Indenture) is registered at the close of business on the regular record date for
such interest installment, [which shall be the close of business on the day next
preceding such Interest Payment Date, provided if the Preferred Securities of
Aetna Capital Trust [ ] are no longer in book-entry only form, the regular
record dates shall be the close of business on the fifteenth (15th) day of each
month next preceding such Interest Payment Date] [IF PURSUANT TO THE PROVISIONS
OF SECTION 2.11(c) OF THE INDENTURE THE SERIES __% DEBENTURES ARE NOT
REPRESENTED BY A GLOBAL DEBENTURE -- which shall be the close of business on the
fifteenth (15th) day of each month next preceding such Interest Payment Date.]
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the registered holders on such regular record
date, and may be paid to the person in whose name this Debenture (or one or more
Predecessor Debentures) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered holders of this series
of Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest
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on this Debenture shall be payable at the office or agency of the Company
maintained for that purpose in __, in any coin or currency of the United States
of America which at the time of payment is legal tender for payment of public
and private debts; provided, however, that payment of interest may be made at
the option of the Company by wire transfer to an account maintained by the
registered holder as such may appear in the Debenture register or by check
mailed to the registered holder at such address as shall appear in the Debenture
register, and that the payment of principal will only be made upon the surrender
of this Debenture to the Trustee. Notwithstanding the foregoing, so long as the
owner and record holder of this Debenture is the Property Trustee (as defined in
the Indenture referred to on the reverse hereof), the payment of the principal
of (and premium, if any) and interest (including Compounded Interest, if any) on
this Debenture will be made at such place and to such account of the Property
Trustee as may be designated by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, 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 action as may be
necessary or appropriate to acknowledge or 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, hereby waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon said
provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
Unless the Certificate of Authentication hereon has been executed by the
Trustee referred to on the reverse side hereof, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
Dated _______________
AETNA SERVICES, INC.
By
---------------------------
Attest:
By
-----------------------
Secretary
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in the
within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
------------------------------------
or as Authentication Agent
By
-------------------------- ------------------------------------
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Debentures"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of _______, 1998 duly executed and delivered between
the Company, Aetna Inc. (the "Guarantor") and The First National Bank of
Chicago, a National Banking Association, as Trustee (herein referred to as the
"Trustee"), as supplemented by the __ Supplemental Indenture dated as of __,
199__ between the Company, the Guarantor and the Trustee (said Indenture as so
supplemented being hereinafter referred to as the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company, the Guarantor and the holders
of the Debentures, and, to the extent specifically set forth in the Indenture,
the holders of Senior Indebtedness and Preferred Securities. By the terms of the
Indenture, the Debentures are issuable in series which may vary as to amount,
date of maturity, rate of interest and in other respects as in the Indenture
provided. This series of Debentures is designated the __% Junior Subordinated
Debentures due 20__ and is limited in aggregate principal amount as specified in
said __ Supplemental Indenture.
Except as provided in the next paragraph, the Debentures may not be
redeemed by the Company prior to __, 20__. The Company shall have the right to
redeem this Debenture at the option of the Company, without premium or penalty,
in whole or in part at any time on or after __, 20__ (an "Optional Redemption"),
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at a redemption price equal to 100% of the principal amount plus any accrued but
unpaid interest, including any Compounded Interest, if any, to the date of such
redemption (the "Optional Redemption Price"). Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice, at
the Optional Redemption Price. If the Debentures are only partially redeemed by
the Company pursuant to an Optional Redemption, the Debentures will be redeemed
pro rata or by lot or by any other method utilized by the Trustee; provided if,
at the time of redemption, the Debentures are registered as a Global Debenture,
the Depository shall determine the principal amount of such Debentures held by
each holder of Debentures to be redeemed in accordance with its customary
procedures.
If, at any time, a Tax Event (as defined below) shall occur or be
continuing after receipt of a Dissolution Tax Opinion (as defined below) and (i)
the Regular Trustees and the Company shall have received an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax counsel
experienced in such matters that, as a result of a Tax Event, there is more than
an insubstantial risk that the Company would be precluded from deducting the
interest on the Series __% Debentures for United States federal income tax
purposes even if the Series __% Debentures were distributed to the holders of
Preferred Securities and Common Securities in liquidation of such holder's
interest in Aetna Capital __ as set forth in the Declaration of Trust or (ii)
the Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion (as defined below) cannot be delivered to Aetna Capital __,
the Company shall have the right at any time, upon not less than 30 nor more
than 60 days' notice, to redeem the Series __% Debentures in whole or in part
for cash at the Optional Redemption Price within 90 days following the
occurrence of such Tax Event; provided, however, that, if at the time there is
available to the Company or the Regular Trustees on behalf of Aetna Capital __
the opportunity to eliminate, within such 90 day period, the Tax Event by taking
some ministerial action ("Ministerial Action"), such as filing a form or making
an election, or pursuing some other similar reasonable measure, which has no
adverse effect on Aetna Capital __, the Company or the holders of the Preferred
Securities, the Company or the Regular Trustees on behalf of Aetna Capital __
will pursue such measure in lieu of redemption and provided further that the
Company shall have no right to redeem the Series __% Debentures while the
Regular Trustees on behalf of Aetna Capital __ are pursuing any such Ministerial
Action.
"Tax Event" means that the Company and the Regular Trustees shall have
obtained an opinion of nationally recognized independent tax counsel experienced
in such matters (a "Dissolution Tax Opinion") to the effect that on or after __,
199__, as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
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States or any political subdivision or taxing authority thereof or therein, (b)
any amendment to, or change in, an interpretation or application of any such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued or announced or
which action is taken, in each case on or after __, 199__, there is more than an
insubstantial risk that (i) Aetna Capital __ is, or will be within 90 days of
the date thereof, subject to United States federal income tax with respect to
income accrued or received on the Series __% Debentures, (ii) Aetna Capital __
is, or will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii) interest
payable by the Company to Aetna Capital __ on the Series __% Debentures is not,
or within 90 days of the date thereof will not be, deductible by the Company for
United States federal income tax purposes.
"No Recognition Opinion" means an opinion of a nationally recognized
independent tax counsel experienced in such matters, which opinion may rely on
any then applicable published revenue ruling of the Internal Revenue Service, to
the effect that the holders of the Preferred Securities will not recognize any
gain or loss for United States federal income tax purposes as a result of a
dissolution of Aetna Capital __ and distribution of the Series __% Debentures as
provided in the Declaration of Trust.
If the Debentures are only partially redeemed by the Company pursuant to
an Optional Redemption or as a result of a Tax Event as described above, the
Debentures will be redeemed pro rata or by lot or in some other equitable manner
determined by the Trustee. Notwithstanding the foregoing, if a partial
redemption of the Series __% Debentures would result in the delisting of the
Preferred Securities by any national securities exchange or other organization
on which the Preferred Securities are then listed, the Company shall not be
permitted to effect such partial redemption and will only redeem the Series __%
Debentures in whole.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures of this series for unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
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declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Debenture upon compliance by the Company with certain
conditions set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture (and, in the case of any series of
Debentures held as trust assets of an Aetna Capital Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of holders
of the Preferred Securities and the Common Securities of such Aetna Capital
Trust as may be required under the Declaration of Trust of such Aetna Capital
Trust), to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Debentures; provided, however, that no such
supplemental indenture shall, without the consent of each Holder of such
Debenture affected thereby: (1) change the Stated Maturity of the principal of
(or premium, if any) or any installment of principal or interest, if any, on any
such Debenture; (2) reduce the principal amount of (or premium, if any) or
interest, if any, on any such Debenture or the principal amount due upon
acceleration of any Original Issue Discount Debenture; (3) change the place or
currency of payment of principal of (or premium, if any) or the interest, if
any, on any such Debenture; (4) impair the right to institute suit for the
enforcement of any such payment on or with respect to any such Debenture; (5)
reduce the percentage of Holders of Debentures necessary to modify or amend the
Indentures (and, in the case of any series of Debentures held as trust assets of
an Aetna Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of the holders of the Preferred Securities
and the Common Securities of such Aetna Capital Trust as may be required under
the Declaration of Trust of such Aetna Capital Trust) then outstanding and
affected thereby; (6) modify or affect in any manner adverse to the Holders of
Debentures the obligation of the Guarantor under the Guarantees in respect of
the due and punctual payment of the principal of (and premium, if any) or
interest on the Debentures; (7) modify the subordination provisions of Articles
14 and 16 of the Indenture in a manner adverse to the holders of the Debentures;
or (8) modify the foregoing requirements or reduce the percentage of Outstanding
Debentures necessary to waive compliance with certain provisions of the
Indenture or for waiver of certain defaults. The Indenture also contains
provisions permitting the Holders of a majority in principal amount of the
Debentures of a series at the time outstanding
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affected thereby (subject, in the case of any series of Debentures held as trust
assets of an Aetna Capital Trust and with respect to which a Securities Exchange
has not theretofore occurred, to such consent of holders of Preferred Securities
and Common Securities of such Aetna Capital Trust as may be required under the
Declaration of Trust of such Aetna Capital Trust), on behalf of the Holders of
the Debenture of such series, to waive any past default under the Indenture with
respect to such series, and its consequences, except a default in the payment of
the principal of or premium or interest on any Debenture of such series. Any
such consent or waiver by the registered Holder of this Debenture (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debenture.
Subject to Section 13.12 of the Indenture, no reference herein to the
Indenture (other than such Section) 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 time and place at the rate and in the money herein
prescribed.
So long as the Company is not in default in the payment of interest on the
Debentures, the Company shall have the right, at any time during the term of the
Debentures, from time to time to extend the interest payment period of such
Debentures for up to 60 consecutive monthly interest periods (the "Extended
Interest Payment Period"), at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate of
__% per annum to the extent permitted by applicable law, compounded monthly
("Compounded Interest")). During such Extended Interest Payment Period the
Company and the Guarantor shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a distribution or liquidation payment with respect to,
any of its capital stock or make any guarantee payments with respect to the
foregoing (other than (i) payments under the Preferred Securities Guarantee or
the equivalent preferred securities guarantees respecting preferred securities
of Aetna Capital Trust __,__ or __, (ii) acquisitions of shares of the Company's
or the Guarantor's common stock in connection with the satisfaction by the
Company or the Guarantor, as the case may be, of its obligations under any
employee benefit plan, (iii) stock repurchases in the open market, (iv)
redemptions of any share purchase rights issued by the Company or the Guarantor
or the declaration of a dividend of share purchase rights, (v) accrued dividends
(and cash in lieu of fractional shares) upon the conversion of any preferred
stock of the Company or the Guarantor as may be outstanding from time to time,
in each case in accordance with the terms of such stock and (vi) stock dividends
paid by the Company or the Guarantor or any dividends paid by the Company
provided the Company is a direct or indirect wholly owned subsidiary of
Guarantor. Prior to the termination of any such Extended Interest Payment
Period, the Company may pay all or any portion of the interest accrued on the
Series __% Debentures on any Interest Payment Date to holders of
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record on the regular record date for such Interest Payment Date or from time to
time further extend such Period; provided that such Period together with all
such further extensions thereof shall not exceed 60 consecutive monthly interest
periods. Upon the termination of any Extended Interest Payment Period and upon
the payment of all accrued and unpaid interest then due, together with
Compounded Interest, the Company may select a new Extended Interest Payment
Period, subject to the foregoing requirements. However, if the Company
establishes a trust pursuant to Section 11.01(b) of the Indenture, it shall be
permitted at the date of establishment to extend the interest payment period for
only one Extended Interest Payment Period (including any Extended Interest
Payment Period outstanding at the date of such establishment). No interest shall
be due and payable during an Extended Interest Payment Period, except at the end
thereof. At the end of the Extended Interest Payment Period the Company shall
pay all interest accrued and unpaid on the Series __% Debentures including any
Compounded Interest which shall be payable to the holders of the Series __%
Debentures in whose names the Series __% Debentures are registered in the
Debenture register on the first record date after the end of the Extended
Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for transfer
at the office or agency of the Company in __ accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company, the Guarantor or
the Debenture Registrar duly executed by the registered holder hereof or his
attorney duly authorized in writing, and thereupon a new Debenture or Debentures
of the same series as this Debenture for a like aggregate principal amount. No
service charge will be made for any such registration of transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Guarantor, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Guarantor nor the Trustee nor any
paying agent nor any Debenture Registrar shall be affected by any notice to the
contrary.
No recourse under or upon any obligations, covenant or agreement of the
Indenture, or of this Debenture, or for any claim based hereon, or otherwise in
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respect hereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company, the Guarantor 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 personal liability being expressly waived and released and
as a consideration for, the execution of the Indenture and the issuance of this
Debenture.
[If certificated Debentures -- The Debentures of this series are issuable
only in registered form without coupons in denominations of $25 and any integral
multiple thereto.] [If Global Debenture -- This Global Debenture is exchangeable
for Debentures in definitive form under certain limited circumstances set forth
in the Indenture. Debentures of this series so issued are issuable only in
registered form without coupons in denominations of $25 or any integral multiple
thereof.] As provided in the Indenture and subject to certain limitations [If
Global Debenture -- herein and] therein set forth, Debentures of this series [If
Global Debenture -- so issued] are exchangeable for a like aggregate principal
amount of Debentures of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ARTICLE 6
ORIGINAL ISSUE OF SERIES __% DEBENTURES
SECTION 6.01. Except as provided in Section 1.01 and this Section 6.01,
Series __% Debentures in the aggregate principal amount equal to $__ may, upon
execution of this __ Supplemental Indenture, be executed by the Company endorsed
with a Guarantee by the Guarantor and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and make available
for delivery said Debentures to or upon the written order of the Company, signed
by its Chairman, its President, any Senior Vice President, or any Vice President
and its Treasurer or an Assistant Treasurer, without any further action by the
Company. Upon exercise of the overallotment option set forth in the Underwriting
Agreement, additional Series __% Debentures in the aggregate principal amount of
up to $__ may be executed by the Company, endorsed by the Guarantor and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Series __% Debentures executed
as aforesaid by the Company, to or upon the written order of the Company, which
order shall be
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accompanied by evidence satisfactory to the Trustee that the overallotment
option has been exercised.
ARTICLE 7
MISCELLANEOUS PROVISIONS
SECTION 7.01. Except as otherwise expressly provided in this __
Supplemental Indenture or in the form of Series __% Debenture or otherwise
clearly required by the context hereof or thereof, all terms used herein or in
said form of Series __% Debenture that are defined in the Indenture shall have
the several meanings respectively assigned to them thereby.
SECTION 7.02. The Indenture, as supplemented by this __ Supplemental
Indenture, is in all respects ratified and confirmed. This __ Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 7.03. The recitals herein contained are made by the Company and
not by the Trustee, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representation as to the validity or
sufficiency of this __ Supplemental Indenture.
SECTION 7.04. This __ 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.
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IN WITNESS WHEREOF, the parties hereto have caused this __ Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
AETNA SERVICES, INC.
By
-------------------------------------
Name:
Title:
Attest:
-------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
-------------------------------------
Name:
Title:
Attest:
-------------------------------------
Name:
Title:
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STATE OF [ ] )
) ss.:
COUNTY OF [ ] ) __________, 199__
On the ______ day of ___________, in the year one thousand nine hundred
ninety-____________, before me personally came _________________ to me known,
who, being by me duly sworn, did depose and say that he resides at
____________________________________; that he is _________________ of AETNA
SERVICES, INC., one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to the said instrument is such corporation seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
------------------------------------
NOTARY PUBLIC
My Commission Expires
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STATE OF [ ] )
) ss.:
COUNTY OF [ ] ) __________, 199__
On the ______ day of ___________, in the year one thousand nine hundred
ninety-_______ before me personally came ___________________ to me known, who,
being by me duly sworn, did depose and say that he resides at
___________________ that he is a __________of THE FIRST NATIONAL BANK OF
CHICAGO, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation and that he signed his
name thereto by like authority.
----------------------------------
NOTARY PUBLIC
My Commission Expires
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(FORM OF GUARANTEE)
GUARANTEE OF AETNA INC.
Aetna Inc., a corporation duly organized and existing under the laws of
the State of Connecticut (herein sometimes referred to as the "Guarantor"), for
value received, hereby unconditionally guarantees to the Holder of this
Debenture upon which this Guarantee is endorsed the due and punctual payment of
the principal of, premium, if any, and interest on this Debenture and the due
and punctual payment of the sinking fund payments provided for herein, when and
as the same shall become due and payable, whether at the Stated Maturity or upon
declaration of acceleration, call for redemption or otherwise, according to the
terms thereof and of the Indenture referred to therein. In case of the failure
of Aetna Services, Inc., a corporation duly organized and existing under the
laws of the State of Connecticut (herein sometimes referred to as the
"Company"), punctually to make any such payment of principal, premium or
interest or sinking fund payment, the Guarantor hereby agrees to pay or to cause
any such payment to be made punctually when and as the same shall become due and
payable, whether at Stated Maturity or upon declaration of acceleration, call
for redemption or otherwise, and as if such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as if it
were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, the validity,
legality or enforceability of this Debenture or the Indenture, or the absence of
any action to enforce the same, or any waiver, modification, indulgence or
consent granted to the Company with respect thereto, by the Holder of this
Debenture or by the Trustee, the recovery of any judgment against the Company or
any action to enforce the same or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor;
provided, however, that notwithstanding the foregoing, no such waiver,
modification or indulgence shall, without the consent of the Guarantor, increase
the principal amount of this Debenture or the interest rate thereon or increase
any premium payable upon redemption thereof. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of bankruptcy of the Company, any right of set-off or to counterclaim, any
right to require a proceeding first against the Company, protest or notice with
respect to this Debenture or the indebtedness evidenced thereby or with respect
to any sinking fund payment required under this Debenture and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, and premium, if any, and interest on this
Debenture.
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The Guarantor shall be subrogated to all rights of the Holder against the
Company in respect of any amounts paid to such Holder by the Guarantor pursuant
to the provisions of this Guarantee; provided, however, that the Guarantor shall
not, without the consent of all Holders of Debentures, be entitled to enforce,
or to receive, any payments arising out of or based upon such right of
subrogation until the principal of, (and premium, if any) and interest then due
and payable on all Debentures of the same series issued under the Indenture
shall have been irrevocably paid in full in accordance with the terms of such
Debentures.
This Guarantee is a guarantee of payment when due and not of collection.
This Guarantee shall continue to be effective, or be reinstated, as the case may
be, in respect of this Debenture if at any time payment, or any part thereof, of
this Debenture is rescinded or must otherwise be restored or returned by the
Holder of this Debenture or any trustee for said Holder upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or any
other entity, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, the Company or
any other entity or any substantial part of their respective property, or
otherwise, all as though such payments had not been made.
No reference herein to such Indenture and no provision of this Guarantee
or of such Indenture shall alter or impair the guarantee of the Guarantor, which
is absolute and unconditional, of the due and punctual payment of the principal
of, and premium, if any, and interest on the Debenture upon which this Guarantee
is endorsed at the times, place and rate, and in the cash or currency prescribed
herein.
The obligations of the Guarantor under this Guarantee are, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness of the Guarantor, and this
Guarantee is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture on which this Guarantee is endorsed, by
accepting the same, (a) agrees to such provisions, (b) authorizes and directs
the Trustee on his behalf to take such action 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.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York, but without regard to principles of conflicts of
laws.
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This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on this Debenture shall have been
manually signed by or on behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall
have the meanings assigned to them in such Indenture.
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IN WITNESS WHEREOF, Aetna Inc. has caused the execution hereof in its
corporate name by its duly authorized officers.
AETNA INC.
By
-------------------------------
[Seal]
Attest:
----------------------------
Name:
Title:
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STATE OF [ ] )
) ss.:
COUNTY OF [ ] ) _________, 199__
On the _______ day of ____________, in the year one thousand nine hundred
ninety-_______ before me personally came _______________________ to me known,
who, being by me duly sworn, did depose and say that he resides at
_______________; that he is a ____________ of AETNA INC., one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation and that he signed his name thereto by like
authority.
--------------------------------
NOTARY PUBLIC
My Commission Expires
30
