EXHIBIT 3.3
Terms of the Preferred Securities, Series [ ]
DATED AS OF , 199[ ]
WRITTEN ACTION OF THE MANAGING MEMBERS
PURSUANT TO SECTION 7.1 OF THE AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF AETNA CAPITAL L.L.C.
The undersigned, constituting all of the Managing Members of
Aetna Capital L.L.C., a Delaware limited liability company (the "Company"),
pursuant to Section 7.1 of the Amended and Restated Limited Liability Company
Agreement of the Company (the "Agreement") dated as of , 1994 by
and among the Managing Members and the Persons who become Members of the
Company in accordance with the provisions thereof, do hereby authorize the
issue of, and establish the relative rights, powers, preferences, limitations
and restrictions of, a series of Preferred Securities as follows:
1. Definitions. All terms defined in the Agreement and not
otherwise defined herein shall have for purposes hereof the meanings provided
for therein. The following additional terms have the respective meanings
specified below:
"Business Day" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law to
close.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities dated as of , 1994 between Aetna Life and Casualty
Company, a Connecticut insurance corporation ("Aetna"), and the Company, as
amended from time to time.
"Guarantee" means the Payment and Guarantee Agreement dated as
of , 1994, executed and delivered by Aetna for the benefit of the
holders from time to time of the Series [ ] Preferred Securities and other
Preferred Securities of the Company, as amended from time to time.
"Redemption Price" means, with respect to any date fixed for
redemption of any Series [ ] Preferred Security, the stated liquidation
preference of such Series [ ] Preferred Security, plus accumulated and unpaid
dividends (whether or not declared) to such date.
"Series [ ] Debentures" means the $ aggregate
principal amount (or up to $ aggregate principal amount if and to the
extent the over-allotment option granted by the Company to the Underwriters of
the Series [ ] Preferred Securities is exercised) of Aetna's Series [ ]
Debentures due [ ] issued pursuant to the Subordinated Indenture and any
other debentures issued under the Subordinated Indenture in exchange for
Aetna's Series [ ] Debentures due [ ] upon the terms and subject to the
conditions set forth in Section 6(e) hereof.
"Subordinated Indenture" means the Indenture, dated as of
, 1994, between Aetna and The First National Bank of Chicago, as Trustee,
as amended or supplemented from time to time (including the officers'
certificate establishing the terms of the Series [ ] Debentures).
2. Designation. of a series of Preferred
Securities (or up to of a series of Preferred Securities if and to
the extent the over-allotment option granted by the Company to the
underwriters of the Series [ ] Preferred Securities is exercised) with a
liquidation preference of $[ ] per Preferred Security are hereby authorized
and designated as "Preferred Securities, Series [ ]" (hereinafter called the
"Series [ ] Preferred Securities").
3. Voting. Except as otherwise provided in the Delaware
Limited Liability Company Act, 6 Del.C. Section 18-101, et seq., as amended,
the Agreement (including, without limitation, Section 8.1 thereof) or this
Written Action, Preferred Members holding the Series [ ] Preferred Securities
shall have, with respect to such Series [ ] Preferred Securities, no right or
power to vote on any question or matter or in any proceeding or to be
represented at, or to receive notice of, any meeting of Members.
4. Periodic Dividends. (a) Periodic dividends on the
Series [ ] Preferred Securities shall be cumulative. Such Dividends will
accumulate and be cumulative whether or not they have been declared and
whether or not there are profits, surplus or other funds of the Company legally
available for the payment of dividends. Dividends shall accrue from
, 199[ ] and, except in the event that Aetna exercises its right to extend the
interest payment period for the Series [ ] Debentures in the manner described
in the Subordinated Indenture, shall be payable monthly in arrears on the last
day of each calendar month of each year, commencing on , 199[ ].
(b) The dividend payable on the Series [ ] Preferred
Securities shall be [describe method of determination thereof] [at a rate of
%] of the liquidation preference of the Series [ ] Preferred Securities. The
amount of dividends payable for any full monthly dividend period shall be
computed on the basis of twelve 30-day months and a 360-day year and, for any
period shorter than a full monthly dividend period, shall be computed on the
basis of the actual number of days elapsed in such period. If the interest
payment period on the Series [ ] Debentures is extended in the manner
described in the Subordinated Indenture, then the rate at which dividends on
the Series [ ] Preferred Securities accumulate shall be increased by an amount
such that the aggregate amount of dividends that accumulates on all
outstanding Series [ ] Preferred Securities during such interest extension
period is equal to the aggregate amount of interest (including interest
payable on unpaid interest) that accrues during such interest extension period
on the portion of such outstanding Series [ ] Debentures that evidence the
loan to Aetna of the proceeds of the issuance of the outstanding Series [ ]
Preferred Securities. The Company shall only pay dividends to the extent it
has funds legally available to make such payments.
(c) Dividends declared on the Series [ ] Preferred Securities
shall be payable to the record holders thereof as they appear on the register
for the Series [ ] Preferred Securities maintained by or on behalf of the
Company on the relevant record date, which shall be one Business Day prior to
the relevant payment date; provided that in the event that the Series [ ]
Preferred Securities do not remain in book-entry-only form, the relevant record
date shall be [the fifteenth day of the month in which the relevant payment
date occurs]. If any date on which dividends are payable on the Series [ ]
Preferred Securities is not a Business Day, then the payment of the dividend
payable on such date shall 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.
(d) Except as described in the Agreement and in this Written
Action, the Series [ ] Preferred Securities shall have no other right to
participate in the profits of the Company.
5. Ranking; Liquidation. (a) The Series [ ] Preferred
Securities shall, with respect to dividend rights and rights on dissolution,
rank (i) pari passu with all other series of Preferred Securities issued by
the Company and (ii) prior to any other Interests of the Company, including
the Common Securities.
(b) In the event of any voluntary or involuntary dissolution
of the Company other than in connection with the exchange of each series of
Preferred Securities for the related series of Debentures, Preferred Members
holding Series [ ] Preferred Securities shall be entitled to receive for each
Series [ ] Preferred Security a liquidation preference of $[ ] plus
accumulated and unpaid dividends (whether or not declared) to the date of
payment.
6. Redemption or Exchange. (a) The Series [ ] Preferred
Securities shall be redeemable at the option of the Company and subject to the
prior consent of Aetna, in whole or in part from time to time, on or after
, 199[ ], upon not less than 30 nor more than 60 days' notice to the
Preferred Members holding Series [ ] Preferred Securities, at the Redemption
Price.
(b) If the Company is or, in the opinion of counsel (which
counsel is not an employee of AL&C or the Company), would be required to pay
Additional Amounts with respect to the Series [ ] Preferred Securities, the
Company may, upon not less than 30 nor more than 60 days' notice to the
Preferred Members holding Series [ ] Preferred Securities with respect to
which such Additional Amounts are required to be paid, redeem such Series [ ]
Preferred Securities at the Redemption Price.
(c) If there shall have occurred after , 199[ ], a
change in any applicable U.S. law or regulation or in the interpretation
thereof (including but not limited to the enactment or imminent enactment of
any legislation, the publication of any judicial decisions, regulatory rulings,
regulatory procedures, or notices or announcements (including notices or
announcements of intent to adopt such procedures or regulations), or a change
in the official position or in the interpretation of any law or regulation by
any legislative body, court, governmental authority or regulatory body,
irrespective of the manner in which such change is made known), and the
Company and Aetna shall have been advised by legal counsel (which counsel is
not an employee of Aetna or the Company) that, as a result of such change,
there exists more than an insubstantial risk that (i) Aetna will be precluded
from deducting the interest paid on the Series [ ] Debentures for federal
income tax purposes or (ii) the Company will be subject to federal income tax
with respect to the interest received on the Series [ ] Debentures, then the
Company may, upon not less than 30 nor more than 60 days' notice to the
Preferred Members holding Series [ ] Preferred Securities, either (a) redeem
the Series [ ] Preferred Securities, in whole or in part, at the Redemption
Price or (b) exchange the Series [ ] Preferred Securities for Series [ ]
Debentures having an aggregate principal amount and accrued and unpaid
interest equal to the Redemption Price and having an interest rate thereon
equal to the dividend rate on the Series [ ] Preferred Securities.
(d) After the date fixed for any exchange of Series [ ]
Preferred Securities for Series [ ] Debentures, (i) the Series [ ] Preferred
Securities will no longer be deemed to be outstanding, (ii) certificates
representing Series [ ] Debentures will be issued to holders of certificates
representing Series [ ] Preferred Securities, upon surrender of such
certificates to the Company or its agent for exchange, (iii) any certificates
representing Series [ ] Preferred Securities not so surrendered for exchange
will be deemed to represent Series [ ] Debentures having a principal amount
and accrued and unpaid interest equal to the Redemption Price of such Series [
] Preferred Securities until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal
will be made with respect to such Series [ ] Debentures) and (iv) all rights
of Preferred Members holding Series [ ] Preferred Securities will cease,
except the right of such Preferred Members to receive Series [ ] Debentures
upon surrender of certificates representing Series [ ] Preferred Securities.
(e) The Series [ ] Preferred Securities shall be redeemed at
the Redemption Price with the proceeds from the repayment by Aetna when due of
the Series [ ] Debentures or upon any optional redemption by Aetna of such
Series [ ] Debentures. Notwithstanding the foregoing, the Series [ ]
Preferred Securities will not be redeemed if (i) in lieu of repaying the
Series [ ] Debentures when due or optionally redeeming such Series [ ]
Debentures, Aetna is permitted by the Company to exchange such Series [ ]
Debentures for new Debentures or (ii) Aetna repays such Series [ ] Debentures
when due or optionally redeems such Series [ ] Debentures but is permitted by
the Company to reborrow the proceeds from such repayment or redemption which
reborrowing will be evidenced by new Debentures; provided that the Company will
only permit Aetna to so exchange the Series [ ] Debentures for new Debentures
or reborrow the proceeds from the repayment or redemption thereof if the
Company owns all of the Series [ ] Debentures and the following conditions are
satisfied (which satisfaction, in the case of clauses (f) through (j), shall
be determined in the judgment of the Managing Members and the Company's
financial advisor (selected by the Managing Members and who shall be
unaffiliated with Aetna and shall be among the 30 largest investment banking
firms, measured by total capital, in the United States at the time of the
issuance of the new Debentures that will evidence the new loan to be made in
connection with such exchange or reborrowing)), (a) Aetna is not bankrupt,
insolvent or in liquidation, (b) Aetna is not in default in the payment of any
interest or principal under the Subordinated Indenture, (c) Aetna has made
timely payments on the Series [ ] Debentures (and has not elected to extend
the interest payment period for the Series [ ] Debentures in the manner
described in the Subordinated Indenture) for the immediately preceding 24
months (and has not elected to extend any interest payment period for the
Series [ ] Debentures during such 24 month period), (d) such new loan will
mature no later than the earlier of (1) the 49th anniversary of the date of
the initial issuance of the Series [ ] Debentures and (2) the 30th anniversary
of the date such new loan is made, (e) the Company is not in arrears on
payments of dividends on the Series [ ] Preferred Securities, (f) Aetna is
expected to be able to make timely payment of principal of and interest on
such new loan, (g) such new loan is being made on terms, and under
circumstances, that are consistent with those which a lender would then
require for a loan to an unrelated party, (h) such new loan is being made at a
rate sufficient to provide payments equal to or greater than the amount of
dividend payments required under the Series [ ] Preferred Securities, (i) such
new loan is being made for a term that is consistent with market circumstances
and Aetna's financial condition and (j) immediately prior to the making of such
new loan, the senior unsecured long-term debt of Aetna is (or if no such debt
is outstanding, would be) rated not less than BBB (or the equivalent) by
Standard & Poor's Corporation and Baa2 (or the equivalent) by Moody's
Investors Service, Inc. and the subordinated unsecured long-term debt of Aetna
(or, if more than one issue of such subordinated debt is outstanding, the most
junior of such issues) is (or if no such debt is outstanding, would be) rated
not less than BBB- (or the equivalent) by Standard & Poor's Corporation and
Baa3 by Moody's Investors Service, Inc. (or if either of such rating
organizations is not then rating Aetna's senior or subordinated unsecured
long-term debt, as the case may be, the equivalent of such ratings by any
other "nationally recognized statistical rating organization," as that term is
defined by the Securities and Exchange Commission for purposes of Rule
436(g)(2) under the Securities Act of 1933, as amended).
(f) The Company may not redeem any Series [ ] Preferred
Securities unless all accumulated arrears of unpaid dividends have been paid
on all Preferred Securities of all series for all monthly dividend periods
terminating on or prior to the date of redemption.
(g) If the Company gives a notice of redemption in respect of
any Series [ ] Preferred Securities, then, by 12:00 noon, New York time, on
the date fixed for redemption, the Company will, so long as the Series [ ]
Preferred Securities are in book-entry-only form, irrevocably deposit with the
securities depository for the Series [ ] Preferred Securities funds sufficient
to pay the applicable Redemption Price and will give such depository
irrevocable instructions and authority to pay the Redemption Price to the
holders thereof. If the Series [ ] Preferred Securities are no longer in
book-entry-only form, the Company will irrevocably deposit with the paying
agent for the Series [ ] Preferred Securities funds sufficient to pay the
applicable Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the Redemption Price to the holders thereof
upon surrender of their Series [ ] Preferred Security certificates.
Notwithstanding the foregoing, dividends payable on or prior to the redemption
date for any Series [ ] Preferred Securities called for redemption shall be
payable to the holders of such Series [ ] Preferred Securities on the relevant
record dates for the payments thereof. If notice of redemption shall have been
given and funds deposited as required, then upon the date of such deposit, all
rights of Preferred Members holding Series [ ] Preferred Securities so called
for redemption will cease, except the right of such Preferred Members to
receive the Redemption Price, but without interest, and such securities will
cease to be outstanding. In the event that any date on which any payment in
respect of the redemption of any Series [ ] Preferred Securities is payable is
not a Business Day, then payment of the Redemption Price 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 falls in the next calendar year, such payment will be made
on the immediately preceding Business Day. In the event that payment of the
Redemption Price in respect of any Series [ ] Preferred Securities called for
redemption is improperly withheld or refused and not paid either by the
Company or by Aetna pursuant to the Guarantee, dividends on such Series [ ]
Preferred Securities will continue to accrue, at the then applicable rate,
from the Redemption Date originally established by the Company for such Series
[ ] Preferred Securities to the date such Redemption Price is actually paid,
in which case the actual payment date will be the date fixed for redemption
for purposes of calculating the Redemption Price.
(h) Subject to the foregoing and applicable law (including,
without limitation, U.S. federal securities laws) Aetna or its subsidiaries
may at any time and from time to time purchase outstanding Series [ ] Preferred
Securities by tender, in the open market or by private agreement.
7. Sinking Fund. The Series [ ] Preferred Securities
[shall] [shall not] be subject to the operation of a retirement or sinking
fund.
8. Guarantee of Liabilities. It shall be a condition
precedent to the issuance of the Series [ ] Preferred Securities that Aetna
execute the Guarantee and the Expense Agreement.
9. Book-Entry-Only Issuance. (a) The Depository Trust
Company, New York, New York ("DTC"), will initially act as securities
depository for the Series [ ] Preferred Securities. The Series [ ] Preferred
Securities will be issued only as fully-registered securities registered in
the name of Cede & Co. (DTC's partnership nominee).
(b) Redemption notices shall be sent to Cede & Co. If less
then all of the Series [ ] Preferred Securities are being redeemed, such
securities shall be redeemed in accordance with DTC's then current practice.
(c) DTC may discontinue providing its services as securities
depository with respect to the Series [ ] Preferred Securities by giving
reasonable notice to the Company as provided in the agreement between the
Company and DTC. Under such circumstances, if a successor securities
depositary is not obtained, the Company at its expense shall cause
certificates for Series [ ] Preferred Securities to be printed and delivered
as promptly as practicable.
(d) In the event that the Series [ ] Preferred Securities do
not remain in book-entry-only form, the following provisions will apply:
(1) Registration of transfers of Series [ ] Preferred
Securities will be effected without charge by or on behalf of
the Company, but upon payment (with the giving of such
indemnity as the Company or Aetna may require) in respect of any
tax or other governmental charges which may be imposed in
connection therewith.
(2) Exchanges of Series [ ] Preferred Securities for
Series [ ] Debentures will be effected without charge by or on
behalf of the Company, but upon payment (with the giving of such
indemnity as the Company or Aetna may require) in respect of
any tax or other governmental charges which may be imposed in
connection with the issuance of any Series [ ] Debenture in the
name of any person other than the registered holder of the
Series [ ] Preferred Security for which the Series [ ]
Debenture is being exchanged or for any reason other than such
exchange.
(3) The Company will not be required to register or
cause to be registered the transfer of Series [ ] Preferred
Securities after such Preferred Securities have been called for
redemption or exchange.
10. Authorization of Agreements. The Company, and either
Managing Member on behalf of the Company, may enter into and perform the
Expense Agreement and the Underwriting Agreement without any further act, vote
or approval of any Member.
11. Registrar and Transfer Agent. The Company hereby appoints
[ ] as its initial registrar, transfer agent and Paying
Agent for the Series [ ] Preferred Securities.
12. Governing Law. This Written Action shall be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the undersigned Managing Members of the
Company have hereto set their hands as of the day and year first above written.
AETNA LIFE AND CASUALTY
COMPANY
By:___________________________
Name:
Title:
AETNA CAPITAL HOLDINGS, INC.
By:___________________________
Name:
Title: