Exhibit 4.24
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as Call Option Holder
AND
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as Unit Agent and as Attorney-In-Fact
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CALL OPTION AGREEMENT
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Dated as of __________, 199__
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CALL OPTION AGREEMENT
THIS CALL OPTION AGREEMENT, dated as of __________, 199__, is made
between _______________, as Call Option Holder, and _______________, as Unit
Agent and as attorney-in-fact of the Holders from time to time of the Normal
Units.
RECITALS:
A. Providian Financial Corporation and the Unit Agent are parties to
the Master Unit Agreement, dated as the date hereof (as the same may be
supplemented or amended in accordance with the terms thereof, the "Master Unit
Agreement"). The Master Unit Agreement contemplates that the Company will issue
QUIPS(sm)* and Junior Subordinated Debentures, and that QUIPS or Junior
Subordinated Debentures will underlie Normal Units outstanding from time to time
thereunder.
B. It is intended that the Holders from time to time of the Normal
Units grant Call Options entitling the Call Option Holder to acquire the QUIPS
or Junior Subordinated Debentures underlying the related Normal Units on the
terms and subject to the conditions set forth herein. Pursuant to the terms of
the Principal Agreements and the Unit Certificates for the Normal Units, the
Holders from time to time of the Normal Units irrevocably authorize the Unit
Agent, as attorney-in-fact of such Holders, to enter into such Call Options and
execute and deliver this Agreement on behalf of such Holders.
NOW, THEREFORE, the Call Option Holder and the Unit Agent, on its own
behalf and as attorney-in-fact of the Holders from time to time of the Normal
Units, agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein as
defined in the Master Unit Agreement; and
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Aggregate Consideration Deliverable on Exercise of the Call Options"
means consideration comprised of:
(i) Treasury Securities that through their scheduled payments
will generate not later than each Quarterly Payment Date falling after
the Call Settlement Date and on or before the Stock Purchase Date an
amount of cash that is at least equal
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* QUIPS is a servicemark of _______________.
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to the aggregate distributions or interest payments that are scheduled
to be payable in respect of the QUIPS or Junior Subordinated Debentures
underlying the Normal Units on such Quarterly Payment Date (assuming
for this purpose that no distributions or payments will then have been
deferred);
(ii) Treasury Securities that through their scheduled payments
will generate not later than the Stock Purchase Date an amount of cash
equal to the aggregate Liquidation Amount of the QUIPS or principal
amount of the Junior Subordinated Debentures underlying the Normal
Units; and
(iii) if the Company is, at the Call Settlement Date,
deferring distributions on the QUIPS or interest payments on the Junior
Subordinated Debentures, an amount in cash equal to (A) the aggregate
deferred distributions on the QUIPS or deferred interest payments on
the Junior Subordinated Debentures underlying the Normal Units accrued
to the Call Settlement Date, if the Call Settlement Date is a Quarterly
Payment Date, and (B) the aggregate deferred distributions on the QUIPS
or deferred interest payments on the Junior Subordinated Debentures
underlying the Normal Units accrued to the Quarterly Payment Date
immediately preceding the Call Settlement Date plus interest thereon at
the QUIPS Distribution Rate for the period from and including such
Quarterly Payment Date to but excluding such Call Settlement Date
(computed on the basis of a three hundred sixty (360) day year of
twelve (12) thirty (30) day months), if the Call Settlement Date is not
a Quarterly Payment Date.
"Call Option Expiration Date" means [________, 2001] (or, if such date
is not a Business Day, the next succeeding Business Day).
2. CALL OPTION.
2.1 GRANT. The Unit Agent, on behalf of and as attorney-in-fact for the
Holders from time to time of the Normal Units, hereby grants the Call Options to
the Call Option Holder on the terms and subject to the conditions set forth
herein.
2.2 CONSIDERATION. As consideration for such Call Options, concurrently
with the execution hereof, the Call Option Holder is paying to the underwriters
under the Underwriting Agreement (who are acting in this regard on behalf of the
initial investors in the Normal Units) an amount equal to $________ per Call
Option.
2.3 EXPIRATION OR TERMINATION OF CALL OPTIONS. The Call Options shall
be irrevocable, but the Call Options and the rights of the Call Option Holder
and the obligations of the Holders of Normal Units thereunder shall (a) expire
on the Call Option Expiration Date if the Call Settlement Date has not occurred
on or prior to such date and (b) automatically terminate upon the occurrence of
a Termination Event.
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3. EXERCISE OF CALL OPTIONS.
3.1 EXERCISE MECHANICS.
(a) The Call Option Holder may exercise all (but not less than all) the
Call Options by (i) delivering to the Unit Agent and the Collateral Agent, on or
prior to the Call Option Settlement Date, a notice, substantially in the form
set forth in Annex A attached hereto, stating that the Call Option Holder is
exercising its Call Options and specifying the Call Settlement Date therefor
(which may not be after the Call Option Expiration Date) and (ii) delivering to
the Collateral Agent, by Noon, New York City time, on the Call Settlement Date,
the Aggregate Consideration Deliverable on Exercise of the Call Options.
(b) Pursuant to the Pledge Agreement, upon receipt by the Collateral
Agent of the Aggregate Consideration Deliverable on Exercise of the Call Options
in the manner contemplated hereby and by the Pledge Agreement, the Collateral
Agent shall transfer the QUIPS or Junior Subordinated Debentures underlying the
Normal Units, free and clear of any lien, pledge or security interest created by
the Pledge Agreement, to the Call Option Holder or its designee as specified in
the notice referred to in Section 3.1(a) above.
(c) The Unit Agent shall, not later than three (3) Business Days
following the Call Settlement Date, mail notice of the exercise of the Call
Options to the Holders in the manner prescribed by the Master Unit Agreement.
4. MISCELLANEOUS.
4.1 AMENDMENTS. This Agreement may be amended in the manner set forth
in Section 801 of the Master Unit Agreement.
4.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Call Option Holder, the
Unit Agent and the Holders from time to time of the Normal Units, acting through
the Unit Agent as their attorney-in-fact, hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in New York City for the
purposes of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Call Option Holder, the Unit Agent
and the Holders from time to time of the Normal Units, acting through the Unit
Agent as their attorney-in-fact, irrevocably waive, to the fullest extent
permitted by applicable law, any objection which they may now or hereafter have
to the laying of the venue of any such proceeding brought in such a court and
any claim that any such proceeding brought in such a court has been brought in
an inconvenient forum.
4.3 NOTICES. All notices, requests, consents and other communications
provided for herein (including, without limitation, any modifications of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telecopy) delivered to the intended recipient
at the "Address for Notices" specified below its name on the
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signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
4.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Call Option
Holder and the Unit Agent, and the Holders from time to time of the Normal
Units, by their acceptance of the same, shall be deemed to have agreed to be
bound by the provisions hereof and to have ratified the agreements of, and the
grant of the Call Options hereunder by, the Unit Agent.
4.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
4.6 SEVERABILITY. If any provision hereof is invalid or unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (a) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in order to carry out the intentions of the parties
hereto as nearly as may be possible and (b) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
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By
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Name
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Title
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Address for Notices:
_______________________________________
________________________________________
________________________________________
Attention: _____________________________
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[---------------]
By
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Name
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Title
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Address for Notices:
_______________________________________
________________________________________
________________________________________
Attention: _____________________________
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ANNEX I
EXERCISE NOTICE
Reference is made to the Call Option Agreement, dated as of __________,
199_ (the "Call Option Agreement"), between _______________, as Call Option
Holder, and _______________, as Unit Agent and attorney-in-fact of the Holders
from time to time of the Normal Units. Capitalized terms used herein but not
defined are used herein as defined in the Call Option Agreement.
The undersigned hereby exercises all of the Call Options underlying the
Normal Units and specifies __________________ as the Call Settlement Date.
Certificates representing the QUIPS or Junior Subordinated Debentures underlying
the Normal Units should be registered in the name of and delivered to [insert
address].
Dated: __________, 199__
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By
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Name
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Title
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