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EXHIBIT 4.10
, dated as of August 14, 1998 (the
"") by and among Lincoln National Corporation, an Indiana
corporation (the "Company"), Lincoln National Capital IV, a Delaware statutory
business trust (the "Trust"), The First National Bank of Chicago, a national
banking association, not individually but solely as Purchase Contract Agent (the
"Purchase Contract Agent") and as attorney-in-fact of the holders of Purchase
Contracts (each as defined in the Purchase Contract Agreement (as defined
herein)), and Xxxxxxx Xxxxx & Co./Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as reset agent and remarketing agent (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue its FELINE PRIDES (the "FELINE
PRIDES") with an aggregate Stated Amount of $200,000,000 ($230,000,000 in the
event the Underwriters' Over-Allotment Option (as defined below) is exercised)
under the Purchase Contract Agreement, dated as of August 14, 1998, by and
between the Purchase Contract Agent and the Company (the "Purchase Contract
Agreement");
WHEREAS, concurrently with the issuance of the FELINE PRIDES,
the Trust will issue separately 1,000,000 6.40% Preferred Securities, Series D
(the "Separate Preferred Securities," and together with the 7,000,000 6.40%
Preferred Securities, Series D, comprising part of the Income PRIDES (8,200,000
in the event the Underwriters' Over-Allotment Option (as defined below) is
exercised) (the "Underlying Preferred Securities"), the "Preferred Securities")
in an aggregate stated liquidation amount of $25,000,000 under the Amended and
Restated Trust Agreement, dated as of August 14, 1998, by and among the Company,
the Administrative Trustees, the Delaware Trustee and the Property Trustee (the
"Trust Agreement");
WHEREAS, the FELINE PRIDES will initially consist of 7,000,000
units referred to as "Income PRIDES" (which number shall be increased to
8,200,000 Income PRIDES in the event the Underwriters' Over-Allotment Option (as
defined below) is exercised) and 1,000,000 units referred to as "Growth PRIDES;"
WHEREAS, the sole assets of the Trust, consisting of
$206,186,000 aggregate principal amount of 6.40% Subordinated Debentures, Series
D, due August 15, 2003 ($237,113,850 in the event the Underwriters'
Over-Allotment Option is exercised) (collectively, the "Debentures") of the
Company will be purchased by the Trust from the Company with the proceeds of the
sale of the Preferred Securities and the proceeds of the sale of the common
securities of the Trust (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities");
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WHEREAS, the Underlying Preferred Securities comprising part
of the Income PRIDES (or upon a dissolution of the Trust and the distribution of
the Debentures as described in the Trust Agreement, such Debentures) will be
pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as of
August 14, 1998, by and among the Company, The Chase Manhattan Bank, as
collateral agent (the "Collateral Agent"), and the Purchase Contract Agent, to
secure an Income PRIDES holder's obligations under the related Purchase Contract
on the Purchase Contract Settlement Date;
WHEREAS, the Company and the Trust have entered into an
Underwriting Agreement dated August 10, 1998 and a Pricing Agreement dated
August 10, 1998 (collectively, the "Underwriting Agreement") (a) providing for
the issuance and sale to the underwriters named therein (the "Underwriters") of
the original 7,000,000 Income PRIDES, 1,000,000 Growth PRIDES and 1,000,000
Separate Preferred Securities and (b) granting to the Underwriters the right
(the "Underwriters' Over-Allotment Option"), exercisable for 30 days, to
purchase up to an additional 1,200,000 Income PRIDES on the terms and subject to
the conditions set forth in the Underwriting Agreement;
WHEREAS, the Underlying Preferred Securities comprising part
of the Income PRIDES, or the Debentures, as the case may be, of such holders of
Preferred Securities or Debentures electing to have their Preferred Securities
or Debentures remarketed, or of such Income PRIDES holders who have elected not
to settle the Purchase Contracts related to their Income PRIDES from the
proceeds of a Cash Settlement and who have not settled their Purchase Contracts
early, will be remarketed by the Remarketing Agent on the third Business Day
immediately preceding the Purchase Contract Settlement Date (the "Remarketing
Date");
WHEREAS, the applicable distribution rate on the Preferred
Securities (and, thus, the interest rate on the Debentures) that remain
outstanding on and after the Purchase Contract Settlement Date will be reset on
the third Business Day immediately preceding the Purchase Contract Settlement
Date, to the Reset Rate to be determined by the Reset Agent as the rate that
such Preferred Securities (and, thus, the Debentures) should bear in order to
have an approximate market value of 100.5% of the aggregate stated liquidation
amount of the Preferred Securities or the aggregate principal amount of the
Debentures on the third Business Day immediately preceding the Purchase Contract
Settlement Date, provided that in the determination of such Reset Rate, the
Company may limit the Reset Spread (a component of the Reset Rate) to be no
higher than 200 basis points (2%);
WHEREAS, the Company and the Trust have requested that Xxxxxxx
Xxxxx & Co./Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx")
act as the Reset Agent and as the Remarketing Agent and, as such, to perform the
services described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and conditions
expressly set forth herein;
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NOW, THEREFORE, for and in consideration of the covenants
herein made, and subject to the conditions herein set forth, the parties hereto
agrees as follows:
Section i. Definitions. Capitalized terms used and not defined
in this Agreement shall have the meanings assigned to them in the Purchase
Contract Agreement or, if not therein stated, the Trust Agreement or the Pledge
Agreement.
Section ii. Appointment and Obligations of Remarketing Agent.
The Company and the Trust hereby appoint Xxxxxxx Xxxxx and Xxxxxxx Xxxxx hereby
accepts such appointment, (i) as the Reset Agent, to determine, in consultation
with the Company, in the manner provided for in the Trust Agreement with respect
to the Trust Securities and in the Indenture with respect to the Debentures, the
Reset Rate that, in the opinion of the Reset Agent, will, when applied to the
Trust Securities (and, thus, the Debentures), enable a Trust Security (and,
thus, a Debenture), to have an approximate market value of approximately 100.5%
of the aggregate stated liquidation amount, in the case of such Trust Security,
and of the aggregate principal amount, in the case of such Debenture (provided
that the Company may limit such Reset Rate to be no higher than the rate on the
Two-Year Benchmark Treasury plus 200 basis points (2%), and provided, further,
that the Reset Rate shall in no event exceed the rate permitted by applicable
law), and (ii) as the exclusive Remarketing Agent to remarket the Preferred
Securities, or the Debentures, as the case may be, of such holders of Underlying
Preferred Securities or Debentures which elect to have their Underlying
Preferred Securities or Debentures remarketed, or of such Income PRIDES holders
which have not settled the related Purchase Contracts early and have failed to
notify the Purchase Contract Agent, on or prior to the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, of their intention
to settle the related Purchase Contracts through Cash Settlement, for settlement
on the Purchase Contract Settlement Date, pursuant to a remarketing underwriting
agreement with the Company, the Trust and the Purchase Contract Agent (the
"Remarketing Underwriting Agreement"), substantially in the form attached hereto
as Exhibit A (with such changes as the Company, the Purchase Contract Agent and
the Remarketing Agent may agree upon, it being understood that changes may be
necessary in the representations, warranties, covenants and other provisions of
the Remarketing Underwriting Agreement due to changes in law or facts and
circumstances). Pursuant to the Remarketing Underwriting Agreement, the
Remarketing Agent, either as the sole remarketing underwriter or as the
representative of a syndicate including the Remarketing Agent and one or more
other remarketing underwriters designated by the Remarketing Agent, will agree,
subject to the terms and conditions set forth therein, that the Remarketing
Agent and any such other remarketing underwriters will purchase severally the
Underlying Preferred Securities or the Debentures, as the case may be, to be
sold by the holder or holders of Underlying Preferred Securities comprising part
of the Income PRIDES on the third Business Day immediately preceding the
Purchase Contract Settlement Date and will use its reasonable efforts to
remarket such Underlying Preferred Securities or the Debentures, as the case may
be (such purchase and remarketing being hereinafter referred to as the
"Remarketing"), at a price of approximately 100.5% of the aggregate stated
liquidation amount of such Underlying Preferred Securities plus any accrued and
unpaid distributions (including any deferred distributions) and, in the case of
Debentures, at a price of approximately 100.5% of the aggregate principal amount
of
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such Debentures plus any accrued and unpaid interest thereon (including any
deferred interest). Notwithstanding the preceding sentence, the Remarketing
Agent shall neither purchase nor remarket any Underlying Preferred Securities or
Debentures, as the case may be, for a price less than 100% of the aggregate
stated liquidation amount or aggregate principal amount of such Underlying
Preferred Securities or Debentures, respectively, plus accumulated and unpaid
distributions or accrued and unpaid interest, as the case may be. However, such
market value may be less than 100.5%, including where the Reset Spread is
limited to the maximum of 2% or if the Reset Rate were to be limited by
applicable law.
"Two-Year Benchmark Treasury" means a direct obligation of the
United States (which may be an obligation traded on a when-issued basis only)
having a maturity comparable to the remaining term to maturity of the Preferred
Securities, as agreed upon by the Company and the Reset Agent. The rate for the
Two-Year Benchmark Treasury will be the bid side rate displayed at 10:00 A.M.,
New York City time, on the third Business Day immediately preceding the Purchase
Contract Settlement Date in the Telerate system (or if the Telerate system is
(a) no longer available on the third Business Day immediately preceding the
Purchase Contract Settlement Date, or (b) in the opinion of the Reset Agent
(after consultation with the Company) no longer an appropriate system from which
to obtain such rate, in either case such other nationally recognized quotation
system as, in the opinion of the Reset Agent (after consultation with the
Company), is appropriate). If such rate is not so displayed, the rate for the
Two-Year Benchmark Treasury shall be calculated by the Reset Agent, the yield to
maturity for the Two-Year Benchmark Treasury, expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis, and computed by taking the arithmetic mean of the secondary market bid
rates, as of 10:30 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date of three leading
United States government securities dealers selected by the Reset Agent (after
consultation with the Company) (which may include the Reset Agent or an
affiliate thereof).
On the tenth Business Day immediately preceding the Purchase
Contract Settlement Date, the Two-Year Benchmark Treasury to be used to
determine the Reset Rate on the Purchase Contract Settlement Date will be
selected and the Reset Spread to be added to the rate on the Two-Year Benchmark
Treasury in effect on the third Business Day immediately preceding the Purchase
Contract Settlement Date will be established by the Reset Agent, and the Reset
Spread and the Two-Year Benchmark Treasury will be announced by the Company (the
"Reset Announcement Date"). The Company will cause a notice of the Reset Spread
and such Two-Year Benchmark Treasury to be published on the Business Day
following the Reset Announcement Date by publication in a daily newspaper in the
English language of general circulation in The City of New York, which is
expected to be The Wall Street Journal. The Company will request, not later than
7 nor more than 15 calendar days prior to the Reset Announcement Date, that the
Depositary notify its participants holding Preferred Securities, Income PRIDES
or Growth Prides of such Reset Announcement Date and of the procedures that must
be followed if any owner of Income PRIDES wishes to settle the related Purchase
Contract with cash on the Business Day immediately preceding the Purchase
Contract Settlement Date.
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"Business Day" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or a day on
which the Property Trustee or the Subordinated Indenture Trustee is closed for
business.
The proceeds of such Remarketing shall be paid to the
Collateral Agent in accordance with Section 4.6 of the Pledge Agreement and
Section 5.4 of the Purchase Contract Agreement (each of which Sections is
incorporated herein by reference). The right of each holder of Underlying
Preferred Securities or Debentures to have Underlying Preferred Securities or
Debentures, as the case may be, rendered for purchase shall be limited to the
extent that (i) the Remarketing Agent conducts a Remarketing pursuant to the
terms of this Agreement, (ii) any Underlying Preferred Securities or Debentures,
as the case may be, tendered have not been called for redemption, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for tendered
Underlying Preferred Securities or Debentures, as the case may be, and (iv) such
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent. The Remarketing Agent is not obligated to purchase any Preferred
Securities or Debentures that would otherwise remain unsold in a Remarketing.
None of the Trust, any Trustee, the Company nor the Remarketing Agent shall be
obligated in any case to provide funds to make payment upon tender of Preferred
Securities or Debentures for remarketing.
Section iii. Fees. With respect to the Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount not exceeding 25 basis points (.25%) of the aggregate stated liquidation
amount of the remarketed Preferred Securities or 25 basis points (.25%) of the
aggregate principal amount of the Debentures, as the case may be, from any
amount received in connection with such Remarketing in excess of the aggregate
stated liquidation amount or aggregate principal amount of such remarketed
Preferred Securities or Debentures plus any accrued and unpaid (including
deferred) distributions or any accrued and unpaid interest (including any
deferred interest), as the case may be. In addition, the Reset Agent shall
receive from the Company a reasonable and customary fee as the reset agent fee
(the "Reset Agent Fee"); provided, however, that if the Remarketing Agent shall
also act as the Reset Agent, then the Reset Agent shall not be entitled to
receive any such Reset Agent Fee. Payment of such Reset Agent Fee shall be made
by the Company on the third Business Day immediately preceding the Purchase
Contract Settlement Date in immediately available funds or, upon the
instructions of the Reset Agent by certified or official bank check or checks or
by wire transfer.
Section iv. Failed Remarketing. If, despite using its
reasonable efforts, the Remarketing Agent cannot remarket the Underlying
Preferred Securities or Debentures (other than to the Company) at a price not
less than 100% of the aggregate stated liquidation amount of such Underlying
Preferred Securities or 100% of the aggregate principal amount of the
Debentures, plus any accumulated and unpaid distributions (including deferred
distributions, if any) or accrued and unpaid interest (including any deferred
interest) or if the remarketing shall not have occurred because a condition
precedent to the remarketing shall not have been fulfilled, resulting in a
Failed Remarketing, the Company will exercise its rights as a secured party to
dispose of the Underlying Preferred Securities or Debentures in accordance with
the applicable
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law and satisfy in full, from the proceeds of such disposition, such holder's
obligation to purchase Common Stock under the related Purchase Contracts;
provided, that if the Company exercises such rights as a secured creditor, any
accrued and unpaid distributions (including deferred distributions, if any) on
such Underlying Preferred Securities or accrued and unpaid interest (including
any deferred interest) in respect of the Debentures will be paid in cash by the
Company to the holders of record of such Underlying Preferred Securities or
Debentures, as the case may be. The Company will cause a notice of such Failed
Remarketing to be published on the second Business Day immediately preceding the
Purchase Contract Settlement Date by publication in a daily newspaper in the
English language of general circulation in The City of New York which is
expected to be The Wall Street Journal. In addition, the Company will request,
not later than seven nor more than 15 calendar days prior to the remarketing
date, that the Depositary notify its participants holding Preferred Securities,
Income PRIDES and Growth PRIDES of such remarketing, including, in the case of a
Failed Remarketing, the procedures that must be followed if a holder of
Preferred Securities or Debentures, as the case may be, wishes to exercise its
right to put its Preferred Securities or Debentures, as the case may be, to the
Company as described in the Trust Agreement.
Section v. Optional Remarketing. Subject to the terms of the
Remarketing Underwriting Agreement, on or prior to the fifth Business Date
immediately preceding the Purchase Contract Settlement Date, but no earlier than
the Payment Date immediately preceding the Purchase Contract Settlement Date,
holders of Separate Preferred Securities which are not components of Income
PRIDES may elect to have their Separate Preferred Securities remarketed in the
same manner as Underlying Preferred Securities which are components of Income
PRIDES (as described herein) by delivering their Separate Preferred Securities,
along with a notice of such election, to the Custodial Agent. The Custodial
Agent will hold such Separate Preferred Securities in an account separate from
the collateral account in which the Pledged Securities will be held. Holders of
Separate Preferred Securities electing to have their Separate Preferred
Securities remarketed will also have the right to withdraw such election on or
prior to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date.
Section vi. Replacement and Resignation of Remarketing Agent.
(i) The Company may in its absolute discretion replace Xxxxxxx Xxxxx as the
Remarketing Agent and/or as the Reset Agent in either such capacity hereunder by
giving notice prior to 3:00 p.m., New York City time, on the eleventh Business
Day immediately prior to the Purchase Contract Settlement Date. Any such
replacement shall become effective, and Xxxxxxx Xxxxx shall be discharged from
its duties and obligations hereunder, as Remarketing Agent and/or Reset Agent
upon the Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and/or the Reset Agent
and the agreement of any such successor so to serve. Upon providing such notice,
the Company shall use all reasonable efforts to appoint such a successor and to
enter into a new with such successor as soon as reasonably
practicable.
(ii) Xxxxxxx Xxxxx may resign at any time and shall be
discharged from its duties and obligations hereunder as the Remarketing Agent
and/or as the Reset Agent by giving
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notice prior to 3:00 p.m., New York City time, on the eleventh Business Day
immediately prior to the Purchase Contract Settlement Date. Any such resignation
shall become effective upon the Company's appointment of a successor to perform
the services that would otherwise be performed hereunder by the Remarketing
Agent and/or the Reset Agent and the agreement of any such successor so to
serve. Upon receiving notice from the Remarketing Agent and/or the Reset Agent
that it wishes to resign hereunder, the Company shall appoint such a successor
and enter into a new with it as soon as reasonably
practicable.
Section vii. Dealing in the Securities. Xxxxxxx Xxxxx, when
acting as Remarketing Agent hereunder or under the Remarketing Underwriting
Agreement or when acting in its individual or any other capacity, may, to the
extent permitted by law, buy, sell, hold or deal in any of the Preferred
Securities or Debentures, as the case may be. With respect to any Preferred
Securities or Debentures, as the case may be, owned by it, the Remarketing Agent
may exercise any vote or join in any action with like effect as if it did not
act in any capacity hereunder. Xxxxxxx Xxxxx, in its individual capacity, either
as principal or agent, may also engage in or have an interest in any financial
or other transaction with the Company as freely as if it did not act in any
capacity hereunder.
Section viii. Registration Statement and Prospectus. In
connection with the Remarketing, if and to the extent required (in the opinion
of counsel for either the Remarketing Agent or the Company) by applicable law,
regulations or interpretations in effect at the time of such Remarketing, the
Company shall use its reasonable efforts to have a registration statement
relating to the full amount of the Preferred Securities effective under the
Securities Act of 1933 by the third Business Day immediately preceding the
Purchase Contract Settlement Date, shall furnish a current prospectus and/or
prospectus supplement to be used in such Remarketing by the remarketing
underwriter or underwriters under the Remarketing Underwriting Agreement, and
shall pay all expenses relating thereto.
Section ix. Conditions to the Remarketing Agent's Obligations.
(i) The obligations of the Remarketing Agent and any other remarketing
underwriters to purchase and remarket the Preferred Securities or the
Debentures, as the case may be, shall be subject to the terms and conditions of
the Remarketing Underwriting Agreement.
(ii) If at any time during the term of this Agreement, any
Debenture Event of Default or Trust Agreement Event of Default, or event that
with the passage of time or the giving of notice or both would become an
Indenture Event of Default or Trust Agreement Event of Default, has occurred and
is continuing under the Indenture or the Trust Agreement, then the obligations
and duties of the Remarketing Agent under this Agreement shall be suspended
until such default or event has been cured. The Company shall cause the
Subordinated Indenture Trustee and the Property Trustee to give the Remarketing
Agent notice of all such defaults and events of which the Trustee is aware.
Section x. Termination of . This
Agreement shall terminate as to any Remarketing Agent which is replaced on the
effective date of its replacement
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pursuant to Section 4(a) hereof or pursuant to Section 4(b) hereof.
Notwithstanding any such termination, the obligations of the Company set forth
in Section 3 hereof shall survive and remain in full force and effect until all
amounts payable under said Section 3 shall have been paid in full.
Section xi. Remarketing Agent's Performance: Duty of Care.
The duties and obligations of the Remarketing Agent hereunder shall be
determined solely by the express provisions of this Agreement and the
Remarketing Underwriting Agreement.
Section xii. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
Section xiii. Term of Agreement. Unless otherwise terminated
in accordance with the provisions hereof and except as otherwise provided
herein, this Agreement shall remain in full force and effect from the date
hereof until three months following the Remarketing Date.
Section xiv. Successors and Assigns. The rights and
obligations of the Company hereunder may not be assigned or delegated to any
other person without the prior written consent of Xxxxxxx Xxxxx, as the
Remarketing Agent and/or the Reset Agent. Subject to the provisions of Section
6, the rights and obligations of Xxxxxxx Xxxxx, as the Remarketing Agent and/or
the Reset Agent hereunder, may not be assigned or delegated to any other person
without the prior written consent of the Company. This Agreement shall inure to
the benefit of and be binding upon the Company and the Remarketing Agent and/or
the Reset Agent and their respective successors and assigns. The terms
"successors" and "assigns" shall not include any purchaser of Preferred
Securities or Debentures merely because of such purchase.
Section xv. Headings. Section headings have been inserted in
this Agreement as a matter of convenience of reference only, and it is agreed
that such section headings are not a part of this Agreement and will not be used
in the interpretation of any provision of this Agreement.
Section xvi. Severability. If any provision of this Agreement
shall be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provisions of any constitution, statute, rule or
public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstances or jurisdiction, or of rendering
any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
Section xvii. Counterparts. This Agreement may be executed in
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
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Section xviii. Amendments. This Agreement may be amended by
any instrument in writing signed by the parties hereto.
Section xix. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to Lincoln National Corporation, 000 Xxxx Xxxxx
Xxxxxx, Xxxx Xxxxx, XX, 00000-0000, Attention: Xxxxxxx X. Xxxxxxx, Executive
Vice President and Chief Financial Officer, with a copy to Xxxxxxxxxxxx Xxxx &
Xxxxxxxxx, 0000 Xxxxx Xxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxx,
Esq.; if to the Trust, to c/o Lincoln National Corporation, 000 Xxxx Xxxxx
Xxxxxx, Xxxx Xxxxx, XX, 00000-0000; if to the Remarketing Agent or Reset Agent
(if Xxxxxxx Xxxxx and Co. is the Remarketing Agent or the Reset Agent), to c/o
Merrill Xxxxx & Co. at Xxxxxxx Xxxxx World Headquarters, World Financial Center,
North Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Mass,
Esq., with a copy to LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xxxxxxx Xxxxx, Esq.; and if to the
Purchase Contract Agent, to The First National Bank of Chicago, Corporate Trust
Services Division, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx XX 00000-0000,
or to such other address as any of the above shall specify to the other in
writing.
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IN WITNESS WHEREOF, each of the Company and the Remarketing
Agent has caused this Agreement to be executed in its name and on its behalf by
one of its duly authorized officers as of the date first above written.
LINCOLN NATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
LINCOLN NATIONAL CAPITAL IV
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Administrative Trustee
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx X. Xxxxxxx, Xx.
--------------------------------------
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders
of the Purchase Contracts
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
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Exhibit A to
FORM OF REMARKETING UNDERWRITING AGREEMENT
Xxxxxxx Xxxxx & Co./Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (the "Remarketing Underwriter") hereby agrees to purchase the
Preferred Securities or, if a Tax Event Redemption has occurred prior to the
Purchase Contract Settlement Date, the Debentures (such Preferred Securities or
Debentures, as the case may be, being hereinafter referred to as the
"Securities"), that have been tendered by the holders of the Income PRIDES for
sale on August 13, 2001.
i. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the purchase contract
agreement (the "Purchase Contract Agreement"), the pledge agreement (the "Pledge
Agreement"), the underwriting agreement (the "Underwriting Agreement"), the
amended and restated Trust Agreement (the "Trust Agreement") and the junior
subordinated indenture, as supplemented by the first supplemental indenture (the
"Indenture"), each as identified in Schedule I hereto.
ii. Registration Statement and Prospectus. If required (in the
opinion of counsel to either the Remarketing Underwriter or the Company) by
applicable law, the Company and the Trust have filed with the Securities and
Exchange Commission, and there has become effective, a registration statement on
Form S-3 (Nos. 333-49201 and 333-49201-02), including a prospectus, relating to
the Securities. Such registration statement, as amended to the date of this
Agreement, is hereinafter referred to as the "Registration Statement", the
prospectus included in the Registration Statement is hereinafter referred to as
the "Basic Prospectus" and the Basic Prospectus, as amended or supplemented to
the date of this Agreement to relate to the Securities and to the remarketing of
the Securities, is hereinafter referred to as the "Final Prospectus" (including
in each case all documents incorporated by reference).
iii. Provisions Incorporated by Reference.
(i) Subject to Section 3(b), the provisions of the
Underwriting Agreement shall be incorporated, as applicable, into this Agreement
and made applicable to the obligations of the Remarketing Underwriter, except as
explicitly amended hereby.
(ii) With respect to the provisions of the
Underwriting Agreement incorporated herein, for the purposes hereof, (i) all
references therein to the "Underwriter" or "Underwriters" shall be deemed to
refer to the Remarketing Underwriter; (ii) all references therein to the
"Preferred Securities" which are the subject thereof shall be deemed to refer to
the Securities as defined herein; (iii) all references therein to the "Closing
Date" shall be deemed to refer to the Remarketing Closing Date specified in
Schedule I hereto (the "Remarketing Closing Date"); (iv) all references therein
to the "Registration Statement" and the "Prospectus" shall be
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deemed to refer to the Registration Statement, and the Prospectus,respectively,
as defined herein.
iv. Purchase and Sale; Remarketing Underwriting Fee. Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth or incorporated herein, the Remarketing Underwriter
agrees to purchase from the registered holder or holders thereof in the manner
specified in Section 5 hereof, the principal amount of Securities set forth in
Schedule I hereto at a purchase price not less than 100% of such Securities'
aggregate stated liquidation amount or aggregate principal amount, as the case
may be, plus any accrued and unpaid distributions or interest, as applicable,
thereon. In connection therewith, the registered holder or holders thereof
agree, in the manner specified in Section 5 hereof, to pay to the Remarketing
Underwriter a Remarketing Underwriting Fee equal to an amount not exceeding 25
basis points (.25%), from any amount received in connection from such
Remarketing in excess of the aggregate stated liquidation amount or aggregate
principal amount, as the case may be, of the Securities. The right of each
holder of Securities to have Securities tendered for purchase shall be limited
to the extent that (i) the Remarketing Agent conducts a remarketing pursuant to
the terms of the , (ii) Securities tendered have not been
called for redemption, (iii) the Remarketing Agent is able to find a purchaser
or purchasers for tendered Securities and (iv) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent. The Remarketing
Agent is not obligated to purchase any Securities that would otherwise remain
unsold in a remarketing. Neither the Trust, any Trustee, the Company nor the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of Securities for remarketing.
v. Delivery and Payment. Delivery of payment for the
remarketed Securities and payment of the Remarketing Underwriting Fee shall be
made on the Remarketing Closing Date at the location and time specified in
Schedule I hereto (or such later date not later than five business days after
such date as the Remarketing representatives shall designate), which date and
time may be postponed by agreement between the Remarketing Underwriter, the
Company, the Trust and the [registered holder or holders thereof]. Delivery of
the remarketed Securities and payment of the Remarketing [Underwriting] Fee
shall be made to the Remarketing Underwriter [to or upon the order of the
[registered holder or holders of the Remarketed Securities] by certified or
official bank check or checks drawn on or by a New York Clearing House bank and
payable in immediately available funds][in immediately available funds by wire
transfer to an account or accounts designated by the [Company] [Trustee]
[registered holder or holders of the remarketed Securities]] or, if the
remarketed Securities are represented by a Global Security, by any method of
transfer agreed upon by the Remarketing Underwriter and the Depositary for the
Securities under the Trust Agreement or Indenture, as applicable.
[It is understood that any registered holder or, if the
Securities are represented by a Global Security, any beneficial owner, that has
an account at the Remarketing Underwriter and tenders its Securities through
such account will not be required to pay any fee or commission to the
Remarketing Underwriter.]
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13
If the Securities are not represented by a Global Security,
certificates for the Securities shall be registered in such names and
denominations as the Remarketing Representatives may request not less than three
full business days in advance of the Remarketing Closing Date, and the Company,
the Trust and the [registered holder or holders thereof] agree to have such
certificates available for inspection, packaging and checking by the Remarketing
Underwriter in New York, New York not later than 1:00 p.m. on the Business Day
prior to the Remarketing Closing Date.
vi. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to Lincoln National Corporation, 000 Xxxx Xxxxx
Xxxxxx, Xxxx Xxxxx, XX, 00000-0000, Attention: Xxxxxxx X. Xxxxxxx, Executive
Vice President and Chief Financial Officer, with a copy to Xxxxxxxxxxxx Xxxx &
Xxxxxxxxx, 0000 Xxxxx Xxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxx,
Esq.; if to the Remarketing Agent or Reset Agent (if Xxxxxxx Xxxxx and Co. is
the Remarketing Agent or the Reset Agent), to c/o Merrill Xxxxx & Co. at Xxxxxxx
Xxxxx World Headquarters, World Financial Center, North Tower, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Mass, Esq., with a copy to LeBoeuf,
Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000-0000,
Attention: Xxxxxxx Xxxxx, Esq.; and if to the Purchase Contract Agent, to The
First National Bank of Chicago, Corporate Trust Services Division, Xxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx XX 00000-0000, or to such other address as
any of the above shall specify to the other in writing.
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14
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Remarketing Underwriters.
Very truly yours,
LINCOLN NATIONAL CORPORATION
By:
---------------------------------
Name:
Title:
LINCOLN NATIONAL CAPITAL IV
By:
---------------------------------
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------
Authorized Signatory
THE FIRST NATIONAL BANK OF CHICAGO
not individually but solely as Purchase Contract
Agent and as attorney-in-fact for the holders
of the Purchase Contracts
By:
------------------------------
Name:
Title:
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15
SCHEDULE I
Purchase Contract Agreement, dated as of
August 14, 1998 by and between
Lincoln National Corporation, an Indiana corporation, and
The First National Bank of Chicago, a national banking association
Pledge Agreement dated as of August 14, 1998
by and between Lincoln National Corporation, an Indiana
corporation, The First National Bank of Chicago,
a national banking association, and
The Chase Manhattan Bank
Amended and Restated Trust Agreement of Trust dated as of
August 14, 1998 of Lincoln National Capital IV,
a Delaware business trust
Junior Subordinated Indenture dated as of May 1, 1996
by and between Lincoln National Corporation, an Indiana
corporation, and The First National Bank of Chicago
First Supplemental Indenture, dated as of August 14,
1998 by and between Lincoln National Corporation, an Indiana
corporation, and The First National Bank of Chicago
Registration Statement Nos. 333-49201 and 333-49201-02
Principal Amount of Securities: $200,000,000 ($230,000,000 if the
Underwriters' over-allotment option is exercised)
Underwriting Agreement, dated as of August 10, 1998, among Lincoln National
Corporation, Lincoln National Capital IV, and Xxxxxxx Xxxxx & Co./Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, BT Alex. Xxxxx Incorporated and CIBC
Xxxxxxxxxxx Corp.
Remarketing [Underwriting] Fee: .25% ($.0025)
Remarketing Closing Date, Time and Location
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