Exhibit 4.14
[FORM OF] AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
UBS PREFERRED FUNDING COMPANY LLC VIII
DATED AS OF ____ __, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions............................................... 2
Section 1.2 Headings.................................................. 13
ARTICLE II
CONTINUATION AND TERM;
ADMISSION OF SECURITYHOLDERS
Section 2.1 Continuation.............................................. 13
Section 2.2 Admission of Securityholders.............................. 13
Section 2.3 Name...................................................... 13
Section 2.4 Term...................................................... 13
Section 2.5 Registered Agent and Office............................... 14
Section 2.6 Principal Executive Offices............................... 14
Section 2.7 Qualification in Other Jurisdictions...................... 14
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY;
BY-LAWS; SUPPORT AGREEMENT
Section 3.1 Purposes and Powers....................................... 14
Section 3.2 By-Laws................................................... 14
Section 3.3 Bank Subordinated Guarantee............................... 14
ARTICLE IV
CAPITAL CONTRIBUTIONS, ALLOCATIONS AND SECURITIES
Section 4.1 Form of Contribution...................................... 15
Section 4.2 Contributions with Respect to the Common Securityholders.. 15
Section 4.3 Contributions with Respect to the Preferred
Securityholders........................................... 15
Section 4.4 Allocation of Profits and Losses.......................... 15
Section 4.5 Withholding............................................... 16
Section 4.6 Securities as Personal Property........................... 16
ARTICLE V
SECURITYHOLDERS
Section 5.1 Powers of Securityholders................................. 16
Section 5.2 Partition................................................. 16
Section 5.3 Resignation............................................... 16
Section 5.4 Liability of Securityholders.............................. 17
ARTICLE VI
MANAGEMENT
Section 6.1 Management of the Company................................. 17
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Section 6.2 Limits on Board of Directors' Powers...................... 21
Section 6.3 Reliance by Third Parties................................. 22
Section 6.4 No Management by Any Preferred Securityholders............ 22
Section 6.5 Business Transactions of the Common Securityholder
with the Company.......................................... 22
Section 6.6 Outside Businesses........................................ 22
Section 6.7 Duties of Directors....................................... 23
Section 6.8 Additional Directors...................................... 23
ARTICLE VII
COMPANY SECURITIES; SUBORDINATED NOTES
Section 7.1 Company Common Securities................................. 23
Section 7.2 General Provisions Regarding Company Preferred
Securities and Company Parity Preferred Securities........ 24
Section 7.3 Company Preferred Securities.............................. 26
Section 7.4 General Provisions Regarding Subordinated Notes........... 36
ARTICLE VIII
VOTING AND MEETINGS
Section 8.1 Voting Rights of Preferred Securityholders................ 37
Section 8.2 Voting Rights of Common Securityholders................... 37
Section 8.3 Meetings of the Securityholders........................... 38
ARTICLE IX
DIVIDENDS
Section 9.1 Dividends................................................. 39
Section 9.2 Limitations on Distributions.............................. 39
Section 9.3 No Dividend Instruction................................... 39
ARTICLE X
BOOKS AND RECORDS
Section 10.1 Financial Statements .................................... 40
Section 10.2 Limitation on Access to Records ......................... 40
Section 10.3 Accounting Method ....................................... 40
Section 10.4 Annual Audit ............................................ 40
ARTICLE XI
TAX MATTERS
Section 11.1 Company Tax Returns. .................................... 41
Section 11.2 Tax Reports ............................................. 41
Section 11.3 Taxation as a Partnership ............................... 41
Section 11.4 Taxation of Securityholders ............................. 41
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ARTICLE XII
EXPENSES
Section 12.1 Expenses ................................................ 41
Section 12.2 Contribution to Funds of the Company .................... 42
ARTICLE XIII
TRANSFERS OF SECURITIES BY SECURITYHOLDERS
AND RELATED MATTERS
Section 13.1 Right of Assignee to Become a Preferred Securityholder .. 42
Section 13.2 Events of Cessation of Security Ownership ............... 42
Section 13.3 Persons Deemed Preferred Securityholders ................ 42
Section 13.4 The Company Preferred Certificates. ..................... 43
Section 13.5 Transfer of Company Preferred Certificates. ............. 43
Section 13.6 Mutilated, Destroyed, Lost or Stolen Company
Preferred Certificates .................................. 44
Section 13.7 Restrictions on Transfers of Securities. ................ 45
ARTICLE XIV
MERGERS, CONSOLIDATIONS AND SALES
Section 14.1 The Company ............................................. 45
ARTICLE XV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 15.1 No Dissolution .......................................... 46
Section 15.2 Events Causing Dissolution .............................. 46
Section 15.3 Notice of Dissolution ................................... 47
Section 15.4 Liquidation ............................................. 47
Section 15.5 Certain Restrictions on Liquidation Payments ............ 47
Section 15.6 Termination ............................................. 48
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Amendments .............................................. 48
Section 16.2 Amendment of Certificate of Formation ................... 48
Section 16.3 Successors .............................................. 48
Section 16.4 Law; Severability ....................................... 48
Section 16.5 Filings ................................................. 49
Section 16.6 Power of Attorney ....................................... 49
Section 16.7 Exculpation. ............................................ 49
Section 16.8 Indemnification ......................................... 50
Section 16.9 Additional Documents .................................... 50
Section 16.10 Notices ................................................. 50
Section 16.11 Nominee Letter .......................................... 51
Section 16.12 Counterparts ............................................ 51
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ANNEX A - Form of UBS AG Subordinated Guarantee Agreement
ANNEX B - Form of Administration Agreement
ANNEX C - By-Laws of the Company
ANNEX D - Form of Subordinated Note of UBS AG
ANNEX E - List of Initial Directors and Officers
ANNEX F - Investment Policies
ANNEX G - Form of Certificate Evidencing Company Preferred Securities
ANNEX H - Form of No Dividend Instruction
ANNEX I - Form of Nominee Letter
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[FORM OF] AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
UBS PREFERRED FUNDING COMPANY LLC VIII
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of UBS
Preferred Funding Company LLC VIII, a Delaware limited liability company (the
"Company"), is made as of ____ __, 200*, among UBS AG, a bank organized under
the laws of Switzerland (the "Bank"), as initial Securityholder (as defined
below) and holder of the Company Common Securities (as defined below), and the
Persons (as defined below), who may from time to time become additional
Securityholders of the Company in accordance with the provisions hereof.
WITNESSETH
WHEREAS, the Bank, as initial Securityholder, has formed a limited liability
company pursuant to the Delaware Limited Liability Company Act, 6 Del.C.
Sections 18-101, et seq., as amended from time to time (the "Delaware Act"), by
filing a Certificate of Formation of the Company (the "Certificate of
Formation") with the office of the Secretary of State of the State of Delaware
on December 12, 2002 and has entered into the Limited Liability Company
Agreement of the Company, dated as of December 12, 2002 and effective as of
December 12, 2002, (the "Original Agreement");
WHEREAS, the initial Securityholder desires to amend and restate the
Original Agreement as provided in this Amended and Restated Limited Liability
Company Agreement of the Company (as amended, modified or supplemented from time
to time in accordance with its terms, this "Agreement") and to continue the
Company as a limited liability company under the Delaware Act in accordance with
the provisions of this Agreement; and
WHEREAS, simultaneously with the Bank's execution and delivery of
this Agreement, the Bank is executing and delivering the UBS AG Subordinated
Guarantee Agreement, dated as of the date hereof, substantially in the form of
Annex A hereto (as amended, modified or supplemented from time to time in
accordance with its terms, the "Bank Subordinated Guarantee").
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the initial Securityholder hereby
agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions. Unless the context otherwise requires, the
terms defined in this Article I shall, for the purposes of this Agreement, have
the meanings herein specified.
"Administration Agreement" means the Administration Agreement
between the Company and the Administrator, dated as of ____ __, 2000,
as amended, modified or supplemented from time to time in accordance
with its terms (attached hereto as Annex B).
"Administrative Action" means any judicial decision, official
administrative pronouncement, published or private ruling, regulatory
procedure, notice or announcement (including any notice or announcement
of intent to adopt such procedures or regulations) by any legislative
body, court, governmental authority or regulatory body having
appropriate jurisdiction.
"Administrator" means the branch of the Bank located in
Stamford, Connecticut, in its capacity as the service provider under
the Administration Agreement.
"Affiliate" means, with respect to a specified Person, any
Person directly or indirectly controlling, controlled by, or under
common control with the specified Person.
"Affiliate Securities" means any securities issued by the Bank
or a subsidiary of the Bank and includes the Subordinated Notes.
"Agreement" has the meaning specified in the second Recital of
this Agreement.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Company Preferred Security, the rules and
procedures of the Clearing Agency for such Company Preferred Security,
in each case to the extent applicable to such transaction and as in
effect from time to time.
"authorized person" has the meaning specified in Section
2.1(b).
"Available Distributable Profits" means, for any financial
year of the Bank, (i) if there are no Bank Parity Securities
outstanding, Distributable Profits for the immediately preceding
financial year of the Bank, and (ii) if there are Bank Parity
Securities outstanding, then an amount determined as the product of (x)
Distributable Profits for such immediately preceding financial year of
the Bank and (y) a ratio (I) the numerator of which is the aggregate
amount of full dividends on the Company Preferred Securities to be paid
on the Dividend Payment Dates which occur during the then current
financial year (but excluding dividends paid on March of the current
year and including dividends to be paid on March of the following year
in the case of calculations occurring
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after _____ 20*) and (II) the denominator of which is the sum of
the amount determined pursuant to clause (I) plus the aggregate amount
of full dividends on the Bank Parity Securities to be paid on dividend
payment dates which occur during the then current financial year.
"Bank" has the meaning specified in the Preamble of this
Agreement.
"Bank Junior Obligations" means (i) ordinary shares of the
Bank, (ii) each class of preferred or preference shares or similar
securities of the Bank that ranks junior to the most senior ranking
preferred or preference shares or similar securities of the Bank, (iii)
any indebtedness, guarantee or support agreement or similar undertaking
of the Bank in respect of any subsidiary securities that rank junior to
the Bank Subordinated Guarantee.
"Bank Parity Securities" means (i) each class of preferred or
preference shares or similar securities of the Bank that ranks equally
with the most senior ranking preferred or preference shares or similar
securities of the Bank and (ii) any securities issued by any
subsidiaries of the Bank and entitled to the benefit of any guarantee
or support agreement or similar undertaking of the Bank that ranks
equally with the Bank Subordinated Guarantee.
"Bank Subordinated Guarantee" has the meaning specified in the
third Recital to this Agreement.
A "Bankruptcy Event" shall be deemed to occur if (i) at any
time the Bank's unconsolidated unsubordinated liabilities exceed its
unconsolidated total assets (valued at the higher of their
going-concern and their liquidation value), as calculated based on the
most recent unconsolidated interim balance sheet of the Bank, and the
unsubordinated creditors of the Bank do not agree to subordinate their
claims to the extent that such liabilities exceed such assets; or (ii)
the Swiss Federal Banking Commission exercises the broad discretion
granted to it under Swiss Banking Law before the occurrence of such an
excess as described in (i), above, by withdrawing the banking license
of the affected bank, which has then been required to go into
liquidation pursuant to Article 23 quinquies of the Swiss Banking Law.
In the case of the occurrence of the events described in (i) above, the
Board of Directors of the Bank, pursuant to Article 725 paragraph 2 of
the Swiss Code of Obligations, must then notify the competent court of
such excess and upon such notification, such court must declare the
bankruptcy of the Bank in accordance with Article 725a paragraph 1 of
the Swiss Code of Obligations and Article 35 paragraph 2 of the Swiss
Banking Law.
"Board of Directors" means the Directors of the Company as
constituted in accordance with the provisions of this Agreement and of
the By-Laws.
"Business Day" means a day on which (i) the Trans-European
Automated Real-Time Gross Settlement Express Transfer System ("TARGET")
is operating, (ii) banks are open for business and carrying out
transactions in U.S. dollars in London, [insert applicable location],
and Wilmington, Delaware.
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"By-Laws" means the By-Laws of the Company in the form of
Annex C hereto, as they may be amended from time to time by the Board of
Directors of the Company in accordance with the provisions of this
Agreement (which By-Laws are, for all purposes of this Agreement, deemed
to be incorporated herein and to be a part hereof).
"Calculation Agent" means the branch of the Bank located in
London.
"Capital Event" means the determination by the Bank after
consultation with the Swiss Federal Banking Commission that the Company
Preferred Securities cannot be included in calculating the Tier 1
capital of the Bank on a consolidated basis.
"Capital Limitation" has the meaning specified in Section
7.3(b)(iii).
"Cayman Islands Branch" means the branch of the Bank located
in the Cayman Islands.
"Certificate of Designations" means a Certificate of
Designations establishing the terms and conditions of the Company
Preferred Securities or the Company Parity Preferred Securities adopted
by the Board of Directors pursuant to Section 7.2(a) and any and all
amendments thereof.
["Change in Tax Law" means the receipt by the Bank of an
opinion of a nationally recognized law firm or other tax advisor (which
may be an accounting firm) in Switzerland, the United States or the
Cayman Islands, as appropriate, experienced in such matters to the
effect that an event of the type described in clause (A), (B) or (C) of
the definition of "Tax Event" has occurred or will occur as a result of
(i) any amendment to, clarification of, or change (including any
announced prospective change) in, the laws or treaties (or any
regulations under any laws or treaties) of the United States,
Switzerland or the Cayman Islands or any political subdivision or
taxing authority of or in the United States, Switzerland or the Cayman
Islands affecting taxation or (ii) any Administrative Action or any
amendment to, clarification of, or change in the official position or
Bank interpretation of any Administrative Action or any interpretation
or pronouncement that provides for a position with respect to any
Administrative Action that differs from the previously generally
accepted position, in each case, by any legislative body, court,
governmental authority or regulatory body, regardless of the manner in
which such amendment, clarification, change, interpretation or
pronouncement is made known, which amendment, clarification, change or
Administrative Action is effective or which interpretation or
pronouncement is announced on or after the date of issuance of the
Company Preferred Securities.]
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended. DTC will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
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"Clearstream" means Clearstream Banking societe anonyme.
"Closing Date" means a "closing date" or "time of delivery"
under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any corresponding United States federal tax
statute enacted after the date of this Agreement. A reference to a
specific section (Section) of the Code (or any Treasury regulation
promulgated thereunder) refers not only to such section but also to any
corresponding provision of any United States federal tax statute (or
any Treasury regulation promulgated thereunder) enacted after the date
of this Agreement, as such specific section or corresponding provision
is in effect on the date of application of the provisions of this
Agreement containing such reference.
"Common Securityholder" means a Securityholder that owns one
or more Company Common Securities. Initially, the Bank will be the only
Common Securityholder.
"Company" has the meaning specified in the Preamble of this
Agreement.
"Company Common Securities" means the securities of the
Company representing the common limited liability company interests in
the Company described in this Agreement.
"Company Junior Securities" means the Company Common
Securities and any classes or series of equity securities of the
Company (representing limited liability company interests in the
Company) now or hereafter issued, other than any class or series of
equity securities of the Company (representing limited liability
company interests in the Company) expressly designated as being on
parity with the Company Preferred Securities as to dividend rights and
rights upon dissolution, liquidation or winding up of the Company.
"Company Parity Preferred Securities" means any class or
series of equity securities of the Company (representing limited
liability company interests in the Company) expressly designated as
being on parity with the Company Preferred Securities as to dividend
rights and rights upon dissolution, liquidation or winding up of the
Company.
"Company Preferred Certificate" means a certificate
substantially in the form attached hereto as Annex G, evidencing the
Company Preferred Securities held by a Preferred Securityholder, which
has been duly executed as provided in Section 13.4.
"Company Preferred Securities" means the *% Noncumulative
Company Preferred Securities, aggregate liquidation preference $*,
offered by the Company pursuant to a Prospectus dated ____ __, 200*
together with any subsequent offering by the Company of *%
Noncumulative Company Preferred Securities (each representing a
preferred limited liability company interest in the Company).
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"Company Security" means a limited liability company interest
in the Company, including the right of the holder thereof to any and
all benefits to which a Securityholder may be entitled as provided in
this Agreement, together with the obligations of a Securityholder to
comply with all of the terms and provisions of this Agreement, and
includes the Company Junior Securities, the Company Preferred
Securities and the Company Parity Preferred Securities from time to
time outstanding.
"Delaware Act" has the meaning specified in the first Recital
of this Agreement.
"Definitive Dividend" means, as to a Dividend Payment Date and
related Dividend Period, dividends that are due and payable because (i)
they are not limited by the Capital Limitation and (ii) either (x) they
are with respect to a Mandatory Dividend Payment Amount due on a
Mandatory Dividend Payment Date or (y) a No Dividend Instruction was
not delivered and they are not limited by the Distributable Profits
Limitation.
"Determination Date" for a Dividend Period means two London
Banking Days preceding the first day of that Dividend Period.
"Directors" means each of the Persons listed as directors on
Annex E hereto until such Persons shall resign or otherwise be duly
removed as a Director, and each Person who may from time to time be
designated to serve as a successor to any Director of the Company or as
an additional Director of the Company, in each case in accordance with
the provisions of this Agreement and of the By-Laws.
"Distributable Profits" means, for any financial year of the
Bank, profit that may be distributed in accordance with Swiss law then
applicable. Currently, for any financial year of the Bank,
distributable profits are equal to profit brought forward, plus profit
for the period, minus appropriation to general statutory reserve plus
other reserves, each as shown in the audited unconsolidated balance
sheet and statement of appropriation of retained earnings of the Bank
and as determined in accordance with accounting standards applicable
under Swiss law.
"Distributable Profits Limitation" means the limitation on
dividends specified in Section 7.3(b)(iv).
"Distributable Profits Limitation Certificate" has the meaning
specified in Section 7.3(b)(iv).
"Dividend Payment Date" has the meaning specified in Section
7.3(b)(i).
"Dividend Period" has the meaning specified in Section
7.3(b)(i).
"dividends" means, when used with respect to Company Preferred
Securities, distributions on the Company Preferred Securities in the
amounts and in the manner set forth in this Agreement.
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"DTC" means The Depository Trust Company.
"Eligible Investments" means, pursuant to the Investment
Policies, the assets or investments which the Company may hold and
consist of (i) the Subordinated Notes issued by the Cayman Islands
branch of UBS AG with an aggregate principal amount of $o, and (ii)
other securities issued by the Bank acting through a branch, agency or
other office located outside of the United States or by a non-U.S.
branch of a non-U.S. subsidiary of the Bank.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System (or its
successor).
"Financial Year" means, with respect to the Company, (i) the
period commencing upon the formation of the Company and ending on
December 31, 200* and (ii) any subsequent twelve month period
commencing on January 1 and ending on December 31 and, with respect to
the Bank, means any twelve-month period commencing on January 1 and
ending on December 31.
"Investment Company Act Event" means the receipt by the Bank
of an opinion of a nationally recognized law firm in the United States
experienced in such matters to the effect that there is more than an
insubstantial risk that the Company or the Trust is an "investment
company" within the meaning of the 1940 Act.
"Investment Policies" means the investment policies of the
Company in the form of Annex F hereto, as amended from time to time by
the Board of Directors of the Company in accordance with the provisions
of this Agreement (which investment policies are, for purposes of this
Agreement, deemed to be incorporated herein and to be a part hereof).
"Junior Creditors" means all holders of any Bank Junior
Obligations.
"liquidation preference" means, with respect to each Company
Preferred Security, as of any time of determination, the liquidation
preference thereof as specified in Section 7.3(a).
"London Banking Day" means a day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
"majority (or other stated percentage) in liquidation
preference" means Preferred Securityholder(s) who are the record owners
of Company Preferred Securities the aggregate liquidation preference of
which represent more than 50% (or not less than the stated percentage)
of the aggregate liquidation preference of all Company Preferred
Securities then outstanding.
["Make Whole Amount" as applied to a redemption of the Company
Preferred Securities means the greater of (i) 100% of the liquidation
preference of the Company Preferred Securities and (ii) as determined
by a Quotation Agent (as defined below), the sum of the present value
of the liquidation preference of the Company
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Preferred Securities together with the present values of scheduled
payments of dividends accrued from the date of redemption to the
Dividend Payment Date in ____ 20* (the "Remaining Life"), in each case
discounted to the date of redemption on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate.]
For purposes of determining the Make Whole Amount:
"Adjusted Treasury Rate" means, with respect to any redemption
date, the Treasury Rate plus [.75]%.
["Comparable Treasury Issue" means, with respect to any
redemption date, the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the Remaining Life
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the Remaining Life. If no United
States Treasury security has a maturity that is within a period from
three months before to three months after the Interest Payment Date and
Dividend Payment Date in _____ 20*, the two most closely corresponding
United States Treasury securities shall be used as the Comparable
Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month
using such securities.]
"Comparable Treasury Price" means (A) the average of five
Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Calculation Agent obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Quotation Agent" means UBS Warburg LLC and its successors,
except that if UBS Warburg LLC shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury
dealer"), the Corporation will designate another Primary Treasury
Dealer.
["Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Quotation Agent
after consultation with the Company.]
["Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Calculation Agent, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Calculation Agent by
such Reference Treasury Dealer at 5:00 p.m., New York City time, on the
third Business Day preceding such redemption date.]
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["Treasury Rate" means (i) the yield, under the heading which
represents the average for the week immediately prior to the redemption
date, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published
weekly by the Federal Reserve and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Remaining Life (or if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life will be
determined and the Treasury Rate will be interpolated or extrapolated
from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date. The Treasury Rate will be
calculated on the third Business Day preceding the redemption date.]
"Mandatory Dividend Payment Amount" has the meaning specified
in Section 7.3(b)(ii).
"Mandatory Dividend Payment Date" has the meaning specified in
Section 7.3(b)(ii).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"No Dividend Instruction" has the meaning specified in Section
9.3.
"Nondefinitive Dividends" means, as to a Dividend Payment Date
and related Dividend Period, dividends that are not Definitive
Dividends.
"Officers" means each of the Persons listed as an Officer on
Annex E hereto until such Persons shall resign or otherwise be duly
removed as an Officer and each Person who may from time to time be duly
appointed an Officer by the Board of Directors or pursuant to Section
6.1(b) and acting in accordance with the provisions of this Agreement
and of the By-Laws.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel to the Company, and who shall be reasonably acceptable
to the Registrar.
"Original Agreement" has the meaning specified in the first
Recital of this Agreement.
"Owner" means each Person who is the record owner reflected on
the securities register maintained by the Registrar.
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"Paying Agency Agreement" means the Paying Agency Agreement,
dated [_______ ___, 20*], between the Company, the Trust, the Bank,
Wilmington Trust Company and [Name of Paying Agent] pursuant to which
the Company appointed Wilmington Trust Company and [Name of Paying
Agent] as paying agents for the Company Preferred Securities.
"Person" means any individual, corporation, association,
partnership (general or limited), joint venture, trust, estate, limited
liability company, or other legal entity or organization.
"Power of Attorney" means the power of attorney granted
pursuant to Section 16.6.
"Preferred Securityholder" means a Securityholder that holds
Company Preferred Securities or Company Parity Preferred Securities.
"Prospectus" means the prospectus, dated ____ __, 200*,
pursuant to which the Company Preferred Securities and the Trust
Preferred Securities are being offered.
"Purchase Price" for any Company Preferred Security means the
amount paid per $[1,000][25] of liquidation preference of such Company
Preferred Security pursuant to an Underwriting Agreement under which
such Company Preferred Securities are being purchased, payment of which
shall constitute the contribution to capital contemplated by Section
4.3.
"Rating Agency" means, at any time, Moody's Investors Service,
Inc., Standard & Poor's Ratings Group or Fitch, Inc., if any are rating
the Company Preferred Securities at the time or, if none are providing
a rating for the Company Preferred Securities at such time, then a
"nationally recognized statistical rating organization" as that term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
"Registrar" has the meaning specified in Section 13.5(a).
"Registrar and Transfer Agency Agreement" means the Registrar
and Transfer Agency Agreement, dated as of ____ __, 200*, between the
Company and Wilmington Trust Company, pursuant to which the Company has
appointed Wilmington Trust Company as registrar and transfer agent for
the Company Preferred Securities, as such agreement may be amended,
modified or supplemented from time to time.
"Relevant Period" means (i) in the case of Bank Parity
Securities that pay dividends less frequently than semi-annually, one
year and (ii) in the case of Bank Parity Securities that pay dividends
semi-annually or more frequently than semi-annually, six months (in
each case ending on or including the date on which the related dividend
on a Bank Parity Security is paid but not including the corresponding
day in the month that is twelve or six months prior thereto).
"Securities Act" means the Securities Act of 1933, as amended.
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"Securities Register" has the meaning specified in Section
13.5(a).
"Securityholder" means any Person that holds a Company
Security and is admitted as a member and securityholder pursuant to the
provisions of this Agreement and of the Delaware Act, in its capacity
as a securityholder and as a member of the Company. For purposes of the
Delaware Act, the Common Securityholders and the Preferred
Securityholders shall constitute separate classes or groups of
Securityholders and of members.
"Subordinated Notes" means the Subordinated Notes issued by
the Cayman Islands Branch, having an aggregate principal amount of $*
in substantially the form of Annex D hereto.
"Swiss Banking Law" means the Swiss Federal Law Relating to
Banks and Savings Banks of November 8, 1934, as amended.
"Swiss Federal Banking Commission" means the Swiss Federal
Banking Commission and, if any successor governmental authority
succeeds to the bank regulatory functions of the Swiss Federal Banking
Commission in Switzerland, such successor governmental authority;
provided, however, that if the Bank becomes domiciled in a jurisdiction
other than Switzerland, then each reference herein to the Swiss Federal
Banking Commission shall be deemed to instead refer to the governmental
authority having primary regulatory authority with respect to the
Bank's capital adequacy in such other jurisdiction.
"Tax Event" means the receipt by the Bank of an opinion of a
nationally recognized law firm or other tax advisor (which may be an
accounting firm) in Switzerland or the United States, as appropriate,
experienced in such matters to the effect that there is more than an
insubstantial risk that (A) the Company or the Trust is or will be
subject to more than a de minimis amount of additional taxes, duties or
other governmental charges, (B) the Bank is or will be required to pay
any additional amounts in respect of any taxes, duties or other
governmental charges with respect to payments of interest or principal
on the Subordinated Notes and with respect to any payments on the Trust
Preferred Securities, (C) the Company is or will be required to pay any
additional amounts in respect of any taxes, duties or other
governmental charges with respect to payments of dividends on the
Company Preferred Securities or the Trust is or will be required to pay
any additional amounts in respect of any taxes, duties or other
governmental charges with respect to distributions on the Trust
Preferred Securities, or (D) the treatment of any of the Company's
items of income, gain, loss, deduction or expense, or the treatment of
any item of income, gain, loss, deduction or expense of the Bank
related to the Subordinated Notes or its ownership of the Company, in
each case as reflected on the tax returns (including estimated returns)
filed (or to be filed) by the Company or the Bank, will not be
respected by a taxing authority, as a result of which the Company or
the Bank is or will be subject to more than a de minimis amount of
additional taxes, duties or other governmental charges or civil
liabilities, the effect of which cannot be avoided by the Company or
the Bank taking reasonable measures
-11-
available to it without any adverse effect on or material cost to the
Bank or the Company (as determined by the Bank in its sole discretion).
"Tax Matters Partner" means the party designated as such in
Section 11.1(a).
["Telerate Page 3750" means the display designated as "Page
3750" on the Bridge/Telerate Service (or such other page as may replace
Page 3750) or such other service or services as may be nominated by the
British Bankers' Association as the information vendor for the purpose
of displaying London interbank offered rates for U.S. dollar deposits.]
"Transaction Documents" has the meaning specified in Section
6.1(e)(i).
"Transfer Agent" has the meaning specified in Section 13.5(a).
"Trust" means, with respect to the Company Preferred
Securities, UBS Preferred Funding Trust VIII, a Delaware statutory
trust, and, with respect to any Company Parity Preferred Securities,
such Trust or another trust performing a substantially similar function
with respect to such Company Parity Preferred Securities.
"Trust Certificates" means, with respect to Company Preferred
Securities issued to the Trust, the certificates issued by the Trust
representing undivided beneficial ownership of such Company Preferred
Securities.
"Trust Preferred Securities" means the *% Noncumulative Trust
Preferred Securities, aggregate liquidation amount $*, offered by the
Trust pursuant to the Prospectus together with any subsequent offering
by the Trust of *% Noncumulative Trust Preferred Securities, in each
case representing an undivided interest in a corresponding amount of
Company Preferred Securities and the Bank Subordinated Guarantee.
"Underwriting Agreement" means an underwriting agreement among
the Company, the Bank and one or more underwriters or initial
purchasers relating to the Company Preferred Securities or a series of
the Company Parity Preferred Securities (and, if the Company Preferred
Securities or the series of Company Parity Preferred Securities are
being held through a Trust (such as UBS Preferred Funding Trust VIII in
the case of the *% Noncumulative Company Preferred Securities), the
related trust certificates).
"United States" means the United States of America, its
territories and possessions, any state of the United States, and the
District of Columbia.
"U.S. dollars," "dollars," "U.S.$" and "$" mean the currency
of the United States of America.
-12-
Section 1.2 Headings. The headings and subheadings in this Agreement
are included for convenience and identification only and are in no way intended
to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
ARTICLE II
CONTINUATION AND TERM;
ADMISSION OF SECURITYHOLDERS
Section 2.1 Continuation.
(a) The Securityholders hereby agree to the continuation of the
Company as a limited liability company under and pursuant to the provisions of
the Delaware Act and of this Agreement and agree that the rights, duties and
liabilities of the Securityholders shall be as provided in the Delaware Act,
except as otherwise provided herein or in the By-Laws.
(b) Any Person designated as an "authorized person" by the Board of
Directors is authorized to execute, deliver and file on behalf of the Company
any and all amendments to and restatements of the Certificate of Formation, as
an authorized person within the meaning of the Delaware Act.
Section 2.2 Admission of Securityholders. Upon the execution of this
Agreement, the Bank shall become and be designated as, automatically and without
any further act on the part of any Person being necessary, the Common
Securityholder. Without execution of this Agreement, upon the payment to the
Company for the Company Preferred Securities being acquired by a Person in
connection with the issuance of the Company Preferred Securities on the Closing
Date pursuant to the terms of the related Underwriting Agreement, which action
shall be deemed to constitute a request by such Person that the books and
records of the Company reflect its admission as a Preferred Securityholder, such
Person shall thereupon be admitted to the Company as a Preferred Securityholder
and shall be bound by all the terms and conditions hereof and of the Company
Preferred Securities.
Section 2.3 Name. The name of the Company being formed hereby is
"UBS Preferred Funding Company LLC VIII". The Company will maintain "UBS" as
part of its name for as long as any Trust Preferred Securities remain
outstanding unless, because of a merger or other business combination involving
the Bank or a change by the Bank of its own name, inclusion of "UBS" as part of
the Company's name is no longer appropriate. Subject to such limitation, the
business of the Company may be conducted upon compliance with all applicable
laws under any other name designated by the Board of Directors.
Section 2.4 Term. The term of the Company shall commence upon the
date a certificate of formation shall have been filed in the office of the
Secretary of State of the State of Delaware and shall continue perpetually,
unless the Company is dissolved in accordance with the provisions of the
Delaware Act and this Agreement. The existence of the Company as a separate
legal entity shall continue until the cancellation of the Certificate of
Formation in the manner required by the Delaware Act.
-13-
Section 2.5 Registered Agent and Office. The Company's registered
agent in the State of Delaware shall be Corporation Service Company, 2711
Centerville Road, Suite 400, Wilmington, Delaware, 19808 and its registered
office in the State of Delaware shall be c/o the registered agent. At any time,
the Board of Directors may designate another registered agent and/or registered
office.
Section 2.6 Principal Executive Offices. The principal executive
offices of the Company shall be determined by the Board of Directors. The Board
of Directors may change the location of the Company's principal place of
business; provided, however, that such change has no material adverse effect
upon any Preferred Securityholder.
Section 2.7 Qualification in Other Jurisdictions. The Board of
Directors shall cause the Company to be qualified or registered under assumed or
fictitious name statutes or similar laws in any jurisdiction in which the
Company conducts business and in which such qualification or registration is
required by law or deemed advisable by the Board of Directors. Each Person
designated by the Board of Directors as an "authorized person" is authorized to
execute, deliver and file on behalf of the Company any certificates (and any
amendments or restatements thereof) necessary for the Company to qualify to do
business in each jurisdiction in which the Board of Directors has determined
that the Company shall conduct business.
ARTICLE III
PURPOSE AND POWERS OF THE COMPANY;
BY-LAWS; SUPPORT AGREEMENT
Section 3.1 Purposes and Powers. The sole purposes of the Company
are to issue Company Preferred Securities, Company Parity Preferred Securities
and Company Common Securities and to use substantially all of the proceeds
thereof to acquire and hold the Subordinated Notes and other Eligible
Investments and, except as otherwise expressly limited herein, to enter into,
make and perform all contracts and other undertakings, and engage in all
activities and transactions, as the Board of Directors may reasonably deem
necessary or advisable for the carrying out of the foregoing purposes of the
Company in all events without causing the Company to be treated as other than a
partnership that is not a publicly traded partnership for U.S. federal income
tax purposes. The Company may not conduct any other business or operations
except as contemplated by the preceding sentence. The Company shall have the
power and authority to take any and all actions necessary, appropriate, proper,
advisable, incidental or convenient to or for the furtherance of the purposes of
the Company as set forth herein.
Section 3.2 By-Laws. The Board of Directors, Officers and
Securityholders shall be subject to the express provisions of this Agreement and
of the By-Laws. In case of any conflict between any provisions of this Agreement
and any provisions of the By-Laws, the provisions of this Agreement shall
control.
Section 3.3 Bank Subordinated Guarantee. Upon execution and delivery
of the Bank Subordinated Guarantee by the Bank, the provisions of the Bank
Subordinated Guarantee
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shall be deemed to be incorporated herein and to be a part hereof except to the
extent any such provisions shall conflict with any express provisions of this
Agreement or of the Delaware Act.
ARTICLE IV
CAPITAL CONTRIBUTIONS, ALLOCATIONS AND SECURITIES
Section 4.1 Form of Contribution. The contribution to the Company
with respect to a Securityholder may, as determined by the Board of Directors in
its discretion, be in cash or other legal consideration.
Section 4.2 Contributions with Respect to the Common
Securityholders. The Common Securityholder shall contribute to the Company on or
prior to the issuance of the Company Preferred Securities, cash in the amount of
$*.
Section 4.3 Contributions with Respect to the Preferred
Securityholders. On each Closing Date, there shall be contributed to the capital
of the Company, with respect to each Person who purchases a Company Preferred
Security on such Closing Date, an amount in cash equal to the Purchase Price for
such Company Preferred Security (such amount being such Person's capital
contribution to the Company). Preferred Securityholders, in their capacity as
Securityholders of the Company, shall not be required to make any additional
contributions to the Company (except as may be required by law).
Section 4.4 Allocation of Profits and Losses. Except as otherwise
provided in Section 7.3, the profits and losses of the Company for any Financial
Year (or portion thereof) shall be allocated as follows:
(a) all gains and losses resulting from any disposition
(including, without limitation, any redemption or prepayment) of assets
by the Company shall be allocated 100% to the Common Securityholders;
(b) except as otherwise provided in a Certificate of
Designations, net profit of the Company (determined without regard to
the amount of any gains and losses described in subparagraph (a) of
this Section 4.4) shall be allocated (i) pro rata among the Preferred
Securityholders until the amount so allocated equals the amount of
dividends paid during such Financial Year (or portion thereof), as
determined on a when-paid basis with respect to the Company Preferred
Securities or Company Parity Preferred Securities held by such
Preferred Securityholder, as adjusted pursuant to Sections 7.3 and 4.3
or in any Certificate of Designations after the delivery of a No
Dividend Instruction, and (ii) thereafter to the Common
Securityholders; and
(c) expenses, deductions and net loss of the Company
(determined without regard to the amount of any gains and losses
described in subparagraph (a) of this Section 4.4) shall be allocated
100% to the Common Securityholders.
Notwithstanding the foregoing, the Tax Matters Partner shall have the power to
alter any such allocations for federal, state, and local income tax purposes if
such alteration is necessary to
-15-
cause such allocations to have "substantial economic effect" (within the meaning
of Treasury regulation section 1.704-1(b)(2)) or to ensure that such allocations
are otherwise in accordance with the interests of the Securityholders (within
the meaning of Treasury regulation section 1.704-1(b)(3)) determined on the
basis of the economic arrangements of the parties as described in this
Agreement.
Section 4.5 Withholding. The Company shall comply with any
withholding requirements under U.S. federal, state and local and foreign law and
shall remit amounts withheld to and file required forms with applicable
jurisdictions. Subject to the provisions of Section 7.3 to the extent that the
Company is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Securityholder, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to such Securityholder. The Company will, however, be required to pay additional
amounts so that the net amount received by a Preferred Securityholder after
withholding will not be less than the Mandatory Dividend Payment Amount then due
and payable as described in Section 7.3(c). To the fullest extent permitted by
law, in the event of any claimed over-withholding, Securityholders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld from a distribution was not withheld from such distribution, the
Company may reduce subsequent distributions by the amount of such withholding to
the extent the Company was not required to pay Additional Amounts with respect
to such withholding. Each Securityholder, by its acceptance of Securities, shall
be deemed to agree to furnish the Company with any representations and forms as
shall reasonably be requested by the Company to assist it in determining the
extent of, and in fulfilling, its withholding obligations.
Section 4.6 Securities as Personal Property. Each Securityholder
hereby agrees that its Company Securities shall for all purposes be personal
property. A Securityholder has no interest in specific property of the Company.
ARTICLE V
SECURITYHOLDERS
Section 5.1 Powers of Securityholders. The Securityholders shall
have the power to exercise any and all rights or powers granted to the
Securityholders pursuant to the express terms of this Agreement and of the
By-Laws and shall be subject in all respects to the provisions hereof and
thereof.
Section 5.2 Partition. Each Securityholder waives any and all rights
that it may have to maintain an action for partition of the property of the
Company.
Section 5.3 Resignation. A Securityholder may resign from the
Company prior to the dissolution and winding up of the Company only upon the
assignment of its entire ownership interest in any Company Securities (including
by any redemption, repurchase or other acquisition by the Company of such
Company Securities) in accordance with the provisions of this Agreement. A
resigning Securityholder shall not be entitled to receive any distribution and
shall not otherwise be entitled to receive the fair value of its Company
Securities except as otherwise expressly provided for in this Agreement.
-16-
Section 5.4 Liability of Securityholders.
(a) Except as otherwise required by the Delaware Act, (i) the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the Company
and (ii) no Securityholder shall be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a
Securityholder of the Company.
(b) A Securityholder, in its capacity as such, shall have no
liability in excess of (i) the amount of its capital contributions, (ii) its
share of any assets and undistributed profits of the Company, (iii) any amounts
required to be paid by such Securityholder pursuant to this Agreement or any
payment and/or indemnity in connection with the registration of transfers of
Company Securities and (iv) the amount of any distributions wrongfully
distributed to it to the extent set forth in the Delaware Act.
ARTICLE VI
MANAGEMENT
Section 6.1 Management of the Company.
(a) Except as otherwise expressly provided in this Agreement or in
the By-Laws or as required in the Delaware Act, the business and affairs of the
Company shall be managed, and all actions required under this Agreement shall be
determined, solely and exclusively by the Board of Directors, which shall have
all rights and powers on behalf and in the name of the Company to perform all
acts necessary and desirable to the objects and purposes of the Company,
including the right to appoint Officers and to authorize any Officer to act on
behalf of the Company. Any action taken by the Board of Directors or any duly
appointed and acting Officer in accordance with this Agreement or the By-Laws
shall constitute the act of, and shall serve to bind, the Company.
(b) The number of directors of the Company initially shall be two,
which number may be increased as provided in this Agreement, in any Certificate
of Designations or in the By-Laws, but shall never be less than two nor more
than five. The names of the Directors who have been appointed by the Company
pursuant to the written consent of the Company's sole member, dated as of ____
__, 200*, shall serve until the first annual meeting of Securityholders and
until their successors are duly elected and qualify, are set forth in Annex E
hereto. These Directors may increase the number of Directors and may fill any
vacancy, whether resulting from an increase in the number of directors or
otherwise, on the Board of Directors occurring before the first annual meeting
of Securityholders in the manner provided in the By-Laws. The names of the
initial Officers, and their offices, are set forth in Annex E hereto. Each such
Officer shall have the duties and responsibilities that would apply to his or
her office if the Company were a corporation established under the Delaware
General Corporation Law, except to the extent that the Directors from
time-to-time determine otherwise.
(c) Each member of the Board of Directors shall be a "manager" of
the Company for all purposes of, and within the meaning of, the Delaware Act.
-17-
(d) Without limiting the generality of the foregoing, and subject to
the provisions of Section 6.2, the Board of Directors shall have all authority,
rights and powers in the management of the business of the Company to do any and
all other acts and things necessary, proper, convenient or advisable to
effectuate the purposes of this Agreement, provided that in exercising its
authority, rights and powers in the management of the business of the Company,
the Board of Directors shall use commercially reasonable efforts in order that
any such action does not cause the Company to be treated as an association or as
a "publicly traded partnership" (within the meaning of Section 7704 of the
Code), including by way of illustration, but not by way of limitation, the
following:
(i) to authorize the Company or any Officer of the Company on
behalf of the Company, to engage in transactions and dealings,
including transactions and dealings with any Securityholder or any
Affiliate of any Securityholder and including the entering into and
performance by the Company of one or more agreements with any Person
whereby, subject to the supervision and control of the Board of
Directors, any such other Person shall render or make available to the
Company managerial, investment, advisory or related services, office
space and other services and facilities upon such terms and conditions
as may be provided in such agreement or agreements (including, if
deemed fair and equitable by the Board of Directors, the compensation
payable thereunder by the Company);
(ii) to call meetings of Securityholders or any class or
series thereof;
(iii) to issue Company Securities, including Company Common
Securities and Company Preferred Securities, in accordance with the
provisions of this Agreement;
(iv) to pay all expenses incurred in forming the Company to
the extent not paid by the Bank;
(v) to purchase, hold and dispose of Eligible Investments in
accordance with the Investment Policies established from time to time
by the Board of Directors and otherwise in accordance with the
provisions of this Agreement;
(vi) to authorize (A) the entering into by the Company of the
Administration Agreement, the Registrar and Transfer Agency Agreement
and the Paying Agency Agreement and (B) the performance by the Company
of its obligations thereunder;
(vii) to authorize (A) the entering into by the Company of the
Underwriting Agreement and (B) the performance by the Company of its
obligations thereunder, including the offer and sale of the Company
Preferred Securities pursuant thereto;
(viii) to authorize the performance by the Company of its
obligations under the Bank Subordinated Guarantee;
-18-
(ix) to authorize (A) the entering into by the Company of
similar agreements (or other agreements not inconsistent herewith) in
the future and (B) the performance by the Company of its obligations
thereunder;
(x) to authorize, suspend, pay, declare or otherwise determine
and make dividends, in cash or otherwise, on Company Securities, in
accordance with the provisions of this Agreement and of the Delaware
Act;
(xi) to establish, when a record date is not otherwise
established by this Agreement, record date with respect to all actions
to be taken hereunder that require a record date to be established,
including with respect to allocations, dividends and voting rights;
(xii) to establish or set aside in their discretion any
reserve or reserves for contingencies and for any other proper Company
purpose;
(xiii) to redeem or repurchase on behalf of the Company,
Company Securities which may be so redeemed or repurchased in
accordance with the provisions of this Agreement;
(xiv) to appoint (and dismiss from appointment) attorneys and
agents on behalf of the Company, and employ (and dismiss from
employment) any and all Persons providing legal, accounting or
financial services to the Company, or such other employees or agents as
the Directors deem necessary or desirable for the management and
operation of the Company;
(xv) to incur and pay all expenses and obligations incident to
the operation and management of the Company, including, without
limitation, the services referred to in the preceding paragraph, taxes,
interest, rent and insurance;
(xvi) to acquire and enter into any contract of insurance
necessary or desirable for the protection or conservation of the
Company and its assets or otherwise in the interest of the Company as
the Board of Directors shall determine;
(xvii) to open accounts and deposit, maintain and withdraw
funds in the name of the Company in banks, savings and loan
associations, brokerage firms or other financial institutions, which
bank accounts if opened prior to one month after the Closing Date for
the Company Preferred Securities may be opened by any Officer that is
authorized to do so by a written consent of any Director;
(xviii) to effect a dissolution or liquidation of the Company,
if the Bank is liquidated, whether voluntarily or involuntarily,
subject to applicable regulatory requirements, including the prior
approval of the Swiss Federal Banking Commission if then required under
applicable guidelines or policies of the Swiss Federal Banking
Commission, and to act as liquidating trustee or the Person winding up
the Company's affairs, all in accordance with and subject to the
provisions of this Agreement and of the Delaware Act;
-19-
(xix) to bring and defend on behalf of the Company actions and
proceedings at law or equity before any court or governmental,
administrative or other regulatory agency, body or commission or
otherwise;
(xx) to prepare and cause to be prepared reports, statements
and other relevant information for distribution to Securityholders as
may be required or determined to be appropriate by the Board of
Directors from time to time;
(xxi) to prepare and file all necessary returns and statements
and pay all taxes, assessments and other impositions applicable to the
assets of the Company;
(xxii) to execute all other documents or instruments, perform
all duties and powers and do all things for and on behalf of the
Company in all matters necessary or desirable or incidental to the
foregoing;
(xxiii) to purchase and maintain on behalf of the Company
insurance to protect any Director or Officer against any liability
asserted against him or her, or incurred by him or her, arising out of
his or her status as such, and
(xxiv) to amend this Agreement in accordance with Section
16.1.
(e) (1) Notwithstanding anything in this Agreement to the contrary,
without the need for consent of any other Person, including the Board of
Directors, the Company is authorized to purchase the Subordinated Notes and to
enter into and perform the Underwriting Agreement relating to the Company
Preferred Securities (including the offer and sale of the Company Preferred
Securities pursuant thereto), the Subordinated Notes Purchase Agreement, the
Administration Agreement, the Paying Agency Agreement, the Calculation Agency
Agreement, the member interest certificates in respect of the Company Preferred
Securities, the Registrar and Transfer Agency Agreement relating to the Company
Preferred Securities, the Registrar and Transfer Agency Agreement relating to
the Trust Preferred Securities, the Amended and Restated Trust Agreement of the
Trust and amendments and restatements thereof, and other similar agreements (and
other agreements not inconsistent therewith) (the "Transaction Documents") and
any Officer or Director of the Company may (A) on behalf of the Company, execute
and deliver, and cause the Company (1) to perform its obligations under, (2) to
satisfy any conditions required to be satisfied by the Company as a condition
precedent to the effectiveness of, and (3) to take such other actions as such
Officer or Director may deem appropriate with respect to, each of the
Transaction Documents; and (B) cause the Company to issue Company Common
Securities and the Company Preferred Securities on the Closing Date under the
Purchase Agreement relating to Company Preferred Securities in accordance with
this Agreement.
(ii) Subject to the provisions of Section 6.2 below, the
expression of any power or authority of the Board of Directors shall
not in any way limit or exclude any other power or authority which is
not specifically or expressly set forth in this Agreement.
(f) The determination as to any of the following matters, made in
good faith by or pursuant to the direction of the Board of Directors consistent
with this Agreement and in
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the absence of actual receipt of an improper benefit in money, property or
services or active and deliberate dishonesty established by a court, shall be
final and conclusive and shall be binding upon the Company and every
Securityholder: the amount of the net income of the Company for any period and
the amount of assets at any time legally available for the payment of dividends,
redemption of the Company Securities or the payment of other distributions on
the Company Securities; the amount of paid-in surplus, net assets, other
surplus, annual or other net profit, net assets in excess of capital, undivided
profits or excess of profits over losses on sales of assets; the amount, purpose
or time of creation of any gain or loss on disposition of the Company's assets;
the amount, purpose, time of creation, increase or decrease, alteration or
cancellation of any reserves or charges and the propriety thereof (whether or
not any obligation or liability for which such reserves or charges shall have
been created shall have been paid or discharged); the fair value, or any sale,
bid or asked price to be applied in determining the fair value, of any asset
owned or held by the Company; and any matters relating to the acquisition,
holding and disposition of any assets by the Company.
(g) The Board of Directors shall cause the Company to use its
available funds, after satisfaction of the Company's liabilities and other
obligations, for distributions to Securityholders in accordance with this
Agreement, and establishment by the Company of such reserves as the Board of
Directors shall deem to be necessary or appropriate to purchase Eligible
Investments in accordance with the Investment Policies, as such policies and
guidelines may be changed from time to time by the Board of Directors as
provided herein; provided that such new policies and guidelines cannot be
inconsistent with the express provisions of this Agreement.
Section 6.2 Limits on Board of Directors' Powers. Anything in this
Agreement to the contrary notwithstanding, the Board of Directors shall not
cause or permit the Company to, and the Company shall not:
(a) acquire any assets other than as expressly provided in the
Investment Policies;
(b) acquire any securities or other assets that give the
Company U.S. source income;
(c) for so long as any Trust Certificates settle and clear
through DTC, Euroclear or Clearstream, acquire or own any securities
other than Eligible Investments;
(d) possess Company property for other than a Company purpose;
(e) admit a Person as a Securityholder, except as expressly
provided in this Agreement;
(f) perform any act that would subject any Preferred
Securityholder to liability for (A) the debts, obligations and
liabilities of the Company in any jurisdiction, except as expressly
provided in this Agreement, or (B) a tax on "unrelated business taxable
income" under the Code as a consequence of such act;
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(g) engage in any activity that would cause the Company to be
treated as an association or as a "publicly traded partnership" (within
the meaning of Section 7704 of the Code);
(h) engage in any activity that is not consistent with the
purposes of the Company, as set forth in Section 3.1 of this Agreement;
or
(i) borrow money or enter into repurchase agreements, reverse
repurchase agreements, or other securities lending transactions or take
any action that could reasonably be expected to cause a Tax Event,
Capital Event or Investment Company Act Event to occur.
Section 6.3 Reliance by Third Parties. Persons dealing with the
Company are entitled to rely conclusively upon the power and authority of the
Board of Directors and of any duly appointed and acting Officers. In dealing
with the Board of Directors or any Officer duly appointed and acting as set
forth in this Agreement or in the By-Laws, no Person shall be required to
inquire into the authority of the Board of Directors or any such Officer to bind
the Company. Persons dealing with the Company are entitled to rely conclusively
on the power and authority of the Board of Directors or any Officer duly
appointed and acting as set forth in this Agreement or in the By-Laws.
Section 6.4 No Management by Any Preferred Securityholders. Except
as otherwise expressly provided herein, no Preferred Securityholder, in its
capacity as a Preferred Securityholder of the Company, shall take part in the
day-to-day management, operation or control of the business and affairs of the
Company. The Preferred Securityholders, in their capacity as Preferred
Securityholders of the Company, shall not be agents of the Company and shall not
have any right, power or authority to transact any business in the name of the
Company or to act for or on behalf of or to bind the Company.
Section 6.5 Business Transactions of the Common Securityholder with
the Company. Subject to Sections 6.1 and 6.2 of this Agreement and applicable
law, a Common Securityholder and any of its Affiliates may hold deposits of, and
enter into business transactions with, the Company and, subject to applicable
law, shall have the same rights and obligations with respect to any such matter
as Persons who are not a Common Securityholder or Affiliates thereof.
Section 6.6 Outside Businesses. Any Director, Officer,
Securityholder or Affiliate thereof may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Company, and the Company
and the Securityholders shall have no rights by virtue of this Agreement in and
to such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Company, shall not be deemed wrongful or improper. No Director, Officer,
Securityholder or Affiliate thereof shall be obligated to present any particular
investment opportunity to the Company even if such opportunity is of a character
that, if presented to the Company, could be taken by the Company, and any
Director, Officer, Securityholder or Affiliate thereof shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such
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particular investment opportunity. Any Securityholder or Affiliate thereof may
engage or be interested in any financial or other transaction with any other
Securityholder or Affiliate thereof.
Section 6.7 Duties of Directors. The Board of Directors shall, in
considering any proposed action or inaction with respect to the Subordinated
Notes pursuant to Section 6.1(d), take into account the interest of both the
Preferred Securityholders and the Bank, as owner of the Company Common
Securities. To the fullest extent permitted by law, no member of the Board of
Directors shall have any liability to any Preferred Securityholder or the
Company for not voting to take any enforcement action under the Subordinated
Notes in the event of a default by the Cayman Islands Branch in performing any
of its obligations (including payment obligations) thereunder.
Section 6.8 Additional Directors. If at any time the aggregate of
unpaid Definitive Dividends on the Company Preferred Securities or any Company
Parity Preferred Securities equals or exceeds an amount equal to three
semi-annual dividend payments, the holders of Company Preferred Securities and
any Company Parity Preferred Securities, voting together as a single class, will
have the exclusive right to elect two additional directors. Holders of a
majority of Company Preferred Securities and Company Parity Preferred Securities
may exercise this right by written consent or at a meeting of such holders
called for such purpose. This meeting may be called at the request of any holder
of Company Preferred Securities or Company Parity Preferred Securities. This
right will continue either until all unpaid Definitive Dividends have been paid
in full or until full dividends have been paid on the Company Preferred
Securities for two consecutive dividend periods. While this right continues, any
vacancy in the office of the additional directors may be filled only by the
holders of Company Preferred Securities and Company Parity Preferred Securities
voting as described above.
ARTICLE VII
COMPANY SECURITIES; SUBORDINATED NOTES
Section 7.1 Company Common Securities.
(a) The Bank, as the initial Common Securityholder, shall be deemed
to have been issued [2,000] Company Common Securities upon its designation as
the Common Securityholder pursuant to Section 2.2 of this Agreement. Upon
issuance as provided in this Agreement, the Company Common Securities so issued
shall be deemed duly authorized, validly issued, fully paid and nonassessable.
(b) Company Common Securities shall not be evidenced by any
certificate or other written instrument, but shall only be evidenced by this
Agreement.
(c) The Common Securityholders will receive dividends out of
interest payments received by the Company on the Subordinated Notes and other
Eligible Investments, if any, not required to be applied to fund dividends with
respect to the Company Preferred Securities or expenses of the Company. However,
as long as the Company Preferred Securities or the Company Parity Preferred
Securities are outstanding, no dividends or other distributions (including
redemptions and purchases) may be made with respect to Company Common
-23-
Securities unless full dividends on all Company Preferred Securities and Company
Parity Preferred Securities have been paid as provided in Section 7.3.
(d) Subject to the rights, if any, of the Preferred Securityholders
(to the limited extent provided in Section 8.1), all voting rights are vested in
the Company Common Securities. The Common Securityholders are entitled to vote
in proportion to the stated amounts represented by their Company Common
Securities.
(e) If the Company dissolves, liquidates or winds up (whether
voluntarily or involuntary) after all debts and liabilities of the Company have
been satisfied and there have been paid or set aside for the Preferred
Securityholders the full preferential amounts to which such holders are
entitled, the Common Securityholders will be entitled to share equally and
ratably in any assets remaining.
Section 7.2 General Provisions Regarding Company Preferred
Securities and Company Parity Preferred Securities.
(a) There is hereby authorized for issuance and sale Company
Preferred Securities having an aggregate initial liquidation preference of $o.
The specific designation, dividend rate, liquidation preference, redemption
terms, voting rights, exchange limitations and other powers, preferences and
special rights and limitations of the Company Preferred Securities are set forth
in Section 7.3 hereof. Upon issuance as provided in this Agreement, the Company
Preferred Securities and the Company Parity Preferred Securities (if any) so
issued, shall be deemed duly authorized, validly issued, fully paid and
nonassessable.
The Company has the power to create and issue additional preferred
limited liability company interests in the Company that are junior to the
Company Preferred Securities as to payment of dividends and payments of amounts
upon dissolution, liquidation or winding up of the Company ("Company Junior
Securities") or that are on a parity with the Company Preferred Securities as to
payment of dividends and payments of amounts upon dissolution, liquidation or
winding up of the Company ("Company Parity Preferred Securities") and admit the
purchasers of such limited liability company interests to the Company as members
of the Company. So long as any Company Preferred Securities remain outstanding,
additional Company Parity Preferred Securities may be issued only with the
consent of the holders of two-thirds (based on the aggregate liquidation
preference) of the Company Preferred Securities and Company Parity Preferred
Securities, voting together as a single class, and only if the Bank Subordinated
Guarantee is amended so that such Company Parity Preferred Securities benefit
from the Bank Subordinated Guarantee in the same manner as the Company Preferred
Securities without any adverse effect on holders of the Company Preferred
Securities. See Section 7.3(h).
The Company may not, without the consent of each Preferred
Securityholder, authorize, create or increase the authorized amount of, or issue
any class or series of equity securities of or limited liability company
interests in the Company, or any warrants, options or other rights convertible
or exchangeable into any class or series of any equity securities of or limited
liability company interests in the Company, ranking prior to the Company
Preferred Securities, either as to dividend rights or rights on dissolution,
winding up or termination of the Company.
-24-
Subject to the express provisions of this Agreement and of the
By-Laws, the Board of Directors shall have authority to fix the terms of Company
Parity Preferred Securities that may be issued by the Company by adopting in
accordance with the provisions of this Agreement a Certificate of Designations
relating to such Company Parity Preferred Securities that shall set forth the
preferences and other terms of such series, including without limitation the
following: (1) the title and stated value of such series; (2) the number or
amount by aggregate liquidation preference of securities of such series offered
and the initial liquidation preference per security or minimum denomination of
such series; (3) the dividend rate(s), period(s), and/or payment date(s) or
method(s) of calculation thereof applicable to such series; (4) whether such
Company Parity Preferred Securities are cumulative or not and, if cumulative,
the date from which dividends on such Company Parity Preferred Securities shall
accumulate; (5) the provisions for a sinking fund, if any, for such series; (6)
the provisions for redemption, if applicable, of such series; (7) any voting
rights of such series; (8) the relative ranking and preferences of such series
as to dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company; (9) any limitations on issuance of any Company
Parity Preferred Securities ranking senior to or on a parity with such series of
Company Preferred Securities as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company; (10) whether such
Company Parity Preferred Securities will be eligible for issuance as book-entry
Company Parity Preferred Securities; and (11) any other specific terms,
preferences, rights, limitations or restrictions of such series. Upon such
adoption by the Board of Directors, each such Certificate of Designations shall
thereupon be incorporated into and deemed to be part of this Agreement.
(b) All Company Preferred Securities and Company Parity Preferred
Securities shall rank senior to all Company Junior Securities in respect of the
right to receive dividends or other distributions and the right to receive
payments out of the assets of the Company upon voluntary or involuntary
dissolution, winding-up or termination of the Company in accordance with the
provisions hereof (subject to the provisions of Section 7.3 or any Certificate
of Designations). All Company Preferred Securities and Company Parity Preferred
Securities redeemed, purchased or otherwise acquired by the Company shall be
canceled. The Company Preferred Securities and Company Parity Preferred
Securities shall be issued in registered form only.
(c) Neither the Bank, the Company nor any of their respective
Affiliates shall have the right to vote or give or withhold consent with respect
to any Company Preferred Security or Company Parity Preferred Security owned by
it, directly or indirectly, and, for purposes of any matter upon which the
Preferred Securityholders may vote or give or withhold consent as provided in
this Agreement, Company Preferred Securities and Company Parity Preferred
Securities owned by any of the Bank, the Company or any of their respective
Affiliates shall be treated as if they were not outstanding.
(d) Anything in this Agreement to the contrary notwithstanding:
(i) as long as any Company Preferred Securities are
outstanding, no Company Parity Preferred Securities may be redeemed or
repurchased unless the Company concurrently redeems an approximately
equal proportion of the aggregate liquidation preference of the
outstanding Company Preferred Securities or each Rating
-25-
Agency then rating the Company Preferred Securities informs the Company
in writing that the redemption or repurchase of such Company Parity
Preferred Securities would not result in a reduction or withdrawal of
the rating then assigned by that Rating Agency to the Company Preferred
Securities, and
(ii) as long as any Company Preferred Securities or Company
Parity Preferred Securities remain outstanding, the Company may issue
or authorize the issuance of any Company Preferred Securities or
Company Parity Preferred Securities only with the approval of the
holders of two-thirds (based on the aggregate liquidation preference)
of the Company Preferred Securities and Company Parity Preferred
Securities, voting together as a single class, and only if the Bank
Subordinated Guarantee is amended prior thereto so that such additional
Company Parity Preferred Securities benefit from the Bank Subordinated
Guarantee in substantially the same manner as the Company Preferred
Securities without any adverse effect on the holders of the Company
Preferred Securities.
(e) In purchasing Company Preferred Securities or Company Parity
Preferred Securities, each Preferred Securityholder agrees with the Bank and the
Company that the Bank, the Company and the Preferred Securityholders (i) will
treat Preferred Securityholders as holders of the Company Preferred Securities
or Company Parity Preferred Securities for all purposes, and not as the holders
of an interest in the Bank, the Cayman Islands Branch or in any other Person and
(ii) will follow allocations made by the Company pursuant to Section 4.4 of this
Agreement.
Section 7.3 Company Preferred Securities.
(a) Designation. There shall hereby be designated as a series of
preferred limited liability company interests in the Company a series identified
as the Company's "*% Noncumulative Company Preferred Securities", liquidation
preference $[1,000][25] per security and aggregate liquidation preference $*
(the "Company Preferred Securities").
The holders of the Company Preferred Securities (or of any other
Company Security) will have no preemptive rights with respect to any limited
liability company interests in the Company or any other securities of the
Company convertible into or carrying rights or options to purchase any such
securities. Company Preferred Securities will not be convertible into Company
Common Securities or any other class or series of limited liability company
interests in the Company and will not be subject to any sinking fund or other
obligation of the Company for its repurchase or retirement.
A Company Preferred Security shall be represented by the
corresponding Company Preferred Certificate.
(b) Dividends.
(i) Dividends on the Company Preferred Securities will be
payable from the date of initial issuance on a noncumulative basis,
[semi-annually in arrears on ____ and ____ of each year through ____
20*, commencing on ____, 200*, and thereafter quarterly in arrears on
____ , ____ , ____ and ____ ][quarterly in arrears on ____, ____,
-26-
____ and ____] (or if any such day is not a Business Day, the next
Business Day, but without any additional interest or other payment in
respect of such delay) (each a "Dividend Payment Date" and each period
from and including a Dividend Payment Date, or the date of initial
issuance as applicable, to but not including the next Dividend Payment
Date, a "Dividend Period") for the Dividend Period then ending, but
only if the Company has legally available funds for such purpose and
satisfies the other qualifications described below. Dividends will be
payable on the liquidation preference [(i) for each Dividend Period
through the Dividend Period ending on the Dividend Payment Date in ____
20*, at a fixed rate per annum on the liquidation preference equal to
*% (calculated on the basis of a year of twelve 30-day months) and (ii)
for each dividend period commencing on such Dividend Payment Date and
thereafter, at a floating rate per annum on the liquidation preference
equal to *% above three-month LIBOR (calculated on the basis of the
actual number of days elapsed in a 360-day year)][at a fixed rate per
annum on the liquidation preference equal to *% (calculated on the
basis of a year of twelve 30-day months)]. Dividends will be
mandatorily due and payable in the circumstances described in Section
7.3(b)(ii) below, except that dividends will never be mandatorily due
and payable if the Capital Limitation described below in Section
7.3(b)(iii) applies. If dividends on a Dividend Payment Date are
neither mandatorily due and payable nor prohibited by application of
the Capital Limitation, then (i) payment of dividends on the Company
Preferred Securities will be limited by the Bank's Available
Distributable Profits (see Section 7.3(b)(iv), below) and (ii) if the
Bank delivers, on or before the tenth Business Day immediately
preceding such Dividend Payment Date, an instruction (a "No Dividend
Instruction") to the Company not to pay dividends on such Dividend
Payment Date or to pay less than full dividends on such Dividend
Payment Date, dividends payable on the related Dividend Payment Date
will be limited as provided in such No Dividend Instruction (see
Section 7.3(b)(v) below).
If any dividends will be payable on the Company Preferred
Securities on a day that is not a Business Day, those dividends will
instead be paid on the next Business Day. No interest or other payment
will be due as a result of any such adjustment.
[LIBOR, with respect to a Determination Date, means the rate
(expressed as a percentage per annum) for deposits in U.S. dollars for
a three-month period commencing on the second London Banking Day
immediately following that Determination Date that appears on Telerate
Page 3750 as of 11:00 a.m. (London time) on that Determination Date. If
such rate does not appear on Telerate Page 3750, LIBOR will be
determined on the basis of the rates at which deposits in U.S. dollars
for a three-month period commencing on the second London Banking Day
immediately following that Determination Date and in a principal amount
equal to an amount of not less than $[1,000,000] that is representative
for a single transaction in such market at such time, are offered to
prime banks in the London interbank market by four major banks in the
London interbank market selected by the Calculation Agent, after
consultation with the Company, at approximately 11:00 a.m., London
time, on that Determination Date.]
[The Calculation Agent will request the principal London
office of each of such banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR with respect to that
Determination Date will be the arithmetic mean of such
-27-
quotations. If fewer than two quotations are provided, LIBOR in respect
of that Determination Date will be the arithmetic mean of the rates
quoted by three major money center banks in New York City selected by
the Calculation Agent, after consultation with the Company, at
approximately 11:00 a.m., New York City time, on that Determination
Date for loans in U.S. dollars to leading European banks for a
three-month period commencing on the second London Banking Day
immediately following that Determination Date and in a principal amount
equal to an amount of not less than $[1,000,000]. However, if the banks
selected by the Calculation Agent to provide quotations are not quoting
as mentioned in this paragraph, LIBOR for the applicable period will be
the same as LIBOR as determined on the previous Determination Date.]
All percentages resulting from any calculations on the Company
Preferred Securities will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655)), and all dollar amounts used in or
resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
(ii) The Company is required to pay dividends on the Company
Preferred Securities in three circumstances, as follows:
(A) If the Bank declares or pays dividends or makes any
other payment or distribution on any Bank Junior Obligations and the
Capital Limitation does not apply, then the Company will be required
to pay full dividends on the Company Preferred Securities during the
one-year period beginning on and including the earlier of the date
on which such dividend was declared or the date on which such
dividend or other payment was made.
(B) If the Bank or any of its subsidiaries redeems,
repurchases or otherwise acquires any Bank Parity Securities or Bank
Junior Obligations for any consideration, except by conversion into
or exchange for shares or Bank Junior Obligations and except as
described below (and provided that the Capital Limitation does not
apply), then the Company will be required to pay dividends on the
Company Preferred Securities during the one-year period beginning on
and including the date on which such redemption, repurchase or other
acquisition occurred.
(C) If (x) the Bank or any of its subsidiaries declares
or pays any dividends or makes any other payment or distribution on
any Bank Parity Securities on any date and (y) during the Relevant
Period ending on and including such date there occurred a Dividend
Payment Date as to which the Company paid no dividends or less than
full dividends on the Company Preferred Securities, and provided
that the Capital Limitation does not apply, then on that date the
Company will be required to pay a special dividend on the Company
Preferred Securities. The special dividend will be payable on that
date whether or not that date is otherwise a Dividend Payment Date
and, if it is a Dividend Payment Date, will be in addition to any
other dividends required to be paid on such Dividend
-28-
Payment Date. The special dividend will be in an amount that, when
taken together with dividends previously paid on the Company
Preferred Securities during the Relevant Period, represents the same
proportion of full dividends on the Company Preferred Securities for
all Dividend Payment Dates during the Relevant Period that the
dividend on Bank Parity Securities paid on such date bears to full
dividends on such Bank Parity Securities for the Relevant Period.
Notwithstanding paragraph (B) above, the Company will not be required to pay
dividends solely as a result of (a) repurchases, redemptions or other
acquisitions of Bank Parity Securities or ordinary shares in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or shareholder share purchase plan or in
connection with the issuance of Bank Parity Securities or Bank Junior
Obligations (or securities convertible into or exercisable for such Bank Parity
Securities or Bank Junior Obligations) as consideration in an acquisition
transaction, (b) market-making in the Bank Parity Securities or ordinary shares
as part of the securities business of the Bank or any of its subsidiaries, (c)
the purchase of fractional interests in shares of Bank Parity Securities or Bank
Junior Obligations pursuant to the conversion or exchange provisions of such
Bank Parity Securities or Bank Junior Obligations or the security being
converted or exchanged, (d) any declaration of a dividend in connection with any
shareholder's rights plan, or the issuance of rights, shares or other property
under any shareholder's rights plan, or the redemption or repurchase of rights
pursuant to any such plan, or (e) any dividend in the form of shares, warrants,
options or other rights where the dividend shares or the shares issuable upon
exercise of such warrants, options or other rights are the same shares as that
on which the dividend is being paid or ranks pari passu with or junior to such
shares.
Any Dividend Payment Date or other date on which dividends on
the Company Preferred Securities are required to be paid as described
in paragraph (A), (B) or (C) above is a "Mandatory Dividend Payment
Date." The amount of dividends required to be paid on any Mandatory
Dividend Payment Date (after giving effect to the Capital Limitation,
if applicable) is called the "Mandatory Dividend Payment Amount". If a
Dividend Payment Date is a Mandatory Dividend Payment Date, the Company
will be required to pay the Mandatory Dividend Payment Amount as
dividends on that date whether or not there are Available Distributable
Profits and whether or not interest is paid on the Subordinated Notes.
(iii) The prohibition on the payment of dividends on the
Company Preferred Securities as described below is called the "Capital
Limitation".
Unless the Swiss Federal Banking Commission expressly permits
otherwise, the Company will not pay dividends on the Company Preferred
Securities on any Dividend Payment Date (whether or not it is a
Mandatory Dividend Payment Date) if on such date the Bank is not in
compliance, or because of a distribution by the Bank or any of its
subsidiaries of profits of the Bank (including a payment of dividends
on the Company Preferred Securities) would not be in compliance, with
the Swiss Federal Banking Commission's minimum capital adequacy
requirements applicable to the Bank as then in effect.
-29-
(iv) The limitation or prohibition on the payment of dividends
on the Company Preferred Securities as described below is called the
"Distributable Profits Limitation". The Distributable Profits
Limitation will not limit or prohibit payment of dividends up to the
Mandatory Dividend Payment Amount as to a Mandatory Dividend Payment
Date.
On or before the Dividend Payment Date in [June] of each year,
the Bank will deliver a certificate to the Company (a "Distributable
Profits Limitation Certificate") specifying: (i) the Distributable
Profits of the Bank for the financial year ending on the preceding
December 31 and (ii) the Available Distributable Profits for payment of
dividends on the Company Preferred Securities on the Dividend Payment
Dates in the then current year.
Unless the Company is required to pay as dividends the
Mandatory Dividend Payment Amount for a Mandatory Dividend Payment
Date, (A) the aggregate amount of dividends on the Company Preferred
Securities that the Company may pay on the Dividend Payment Date in
[June] of the current year may not exceed the lesser of full dividends
and the Available Distributable Profits set forth in such Distributable
Profits Limitation Certificate, and (B) the aggregate amount of
dividends on the Company Preferred Securities that the Company may pay
on any subsequent Dividend Payment Date in the current year [(or in
[March] of the following year in the case of Dividend Payment Dates
occurring after ____ 20*)][or in [March of the following year]] may not
exceed the lesser of full dividends and the remaining amount of such
Available Distributable Profits (after giving effect to the payment of
dividends pursuant to this subclause or subclause (A), above).
(v) Except for the Mandatory Dividend Payment Amounts required
to be paid on Mandatory Dividend Payment Dates:
(A) dividends on Company Preferred Securities will not
be payable on a Dividend Payment Date if, on or before the tenth
Business Day immediately preceding such Dividend Payment Date, the
Bank delivers a No Dividend Instruction to the Company instructing
it not to pay dividends on such Dividend Payment Date; and
(B) if, on or before the tenth Business Day immediately
preceding such Dividend Payment Date, the Bank delivers a No
Dividend Instruction to the Company limiting but not prohibiting the
payment of dividends on such Dividend Payment Date, dividends on the
Company Preferred Security will be payable on such Dividend Payment
Date only to the extent permitted by such No Dividend Instruction.
If a No Dividend Instruction is given, then the Company must
promptly give notice to holders of the Company Preferred Securities in
the manner described in Section 7.3(i) of the fact that it has received
a No Dividend Instruction and the amount of dividends, if any, that
will be paid on the related Dividend Payment Date.
-30-
(c) Additional Amounts. If the Company or the Trust is required to
withhold any taxes, duties or other governmental charges with respect to any
payment of dividends on the Company Preferred Securities or the Trust Preferred
Securities, the Company will be required to pay as additional amounts included
in the mandatory dividend payment (and the Bank will be required to include in
any related payment made by it under the Bank Subordinated Guarantee) an amount
sufficient that the net amount received by the holder of the Company Preferred
Securities or Trust Preferred Securities, as applicable, after the withholding,
will not be less than the Mandatory Dividend Payment Amount. However, the
Company will not be required to pay any such additional amounts to the extent
that the taxes, duties or other governmental charges are imposed or levied by
Switzerland or the Cayman Islands because the holder or beneficial owner of
Trust Preferred Securities or Company Preferred Securities (other than the
Trust):
(i) has some connection with Switzerland or the Cayman
Islands, as applicable, other than being a holder or beneficial owner
of those Trust Preferred Securities or Company Preferred Securities; or
(ii) has not made a declaration of non-residence in, or other
lack of connection with, Switzerland or the Cayman Islands, as
applicable, or any similar claim for exemption, if the Company has
given the beneficial owner of those Trust Preferred Securities or
Company Preferred Securities or its nominee at least 60 days' prior
notice of an opportunity to make the declaration or claim.
(d) Ranking and Liquidation Preference. The Company Preferred
Securities ordinarily will rank senior to the Company Common Securities as to
payment of dividends. However, the Bank has the right to shift the dividend
preference of the Company Preferred Securities to the Company Common Securities
on any Dividend Payment Dates to the extent that the Mandatory Dividend Payment
Amount then required to be paid as dividends on the Company Preferred Securities
(if any) is less than full dividends on the Company Preferred Securities. If the
Bank shifts the dividend preference to the Company Common Securities, the
interest payment received by the Company on the Subordinated Notes will be
returned as dividends to the Bank as holder of the Company Common Securities
before any dividends are paid on the Company Preferred Securities.
As long as any Company Preferred Securities are outstanding, the
Bank, to the fullest extent permitted by law, will take no voluntary action to
cause the Company to dissolve or liquidate unless the Bank also liquidates. If
the Bank is liquidated, whether voluntarily or involuntarily (and whether in
connection with the occurrence of a Bankruptcy Event or otherwise), the Company
will be liquidated.
If the Company dissolves, liquidates, or winds up, then, after the
claims of any creditors of the Company are satisfied, the holders of the Company
Preferred Securities will be entitled to receive, before any distribution of
assets is made to the holders of Company Junior Securities upon liquidation,
liquidating distributions in respect of the Company Preferred Securities in the
amount of the liquidation preference of their Company Preferred Securities plus
an amount equal to unpaid dividends, if any, on the Company Preferred Securities
with respect to the current Dividend Period accrued on a daily basis to the date
of liquidation, plus an amount
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equal to unpaid Definitive Dividends for any prior Dividend Period, but without
interest and without accumulation of unpaid Nondefinitive Dividends for any
prior Dividend Period.
Notwithstanding and as a limitation on the foregoing, the holders of
the Company Preferred Securities may not receive liquidating distributions in a
liquidation of the Company in an amount exceeding the liquidating distributions
to which they would have been entitled had they instead owned preferred shares
of the Bank having an aggregate liquidation preference equal to the aggregate
liquidation preference of the Company Preferred Securities and bearing dividends
at the rate of dividends applicable to the Company Preferred Securities. The
holders of the Company Common Securities will be entitled to share pro rata in
any remaining assets of the Company only after holders of the Company Preferred
Securities have received the amounts described above.
(e) Voting Rights. Except as expressly required by applicable law,
or except as indicated below, the holders of Company Preferred Securities will
not be entitled to vote. In the event the holders of Company Preferred
Securities are entitled to vote as indicated below, each $[1,000] [25]
liquidation preference of Company Preferred Securities will be entitled to one
vote on matters on which holders of Company Preferred Securities are entitled to
vote.
If at any time the aggregate of unpaid dividends equals or exceeds
an amount equal to [three semi-annual or six quarterly] dividend payments, the
holders of the Company Preferred Securities and any Company Parity Preferred
Securities, voting together as a single class, will have the exclusive right to
elect two additional Directors of their choosing. Holders of a majority (based
on the aggregate liquidation preference) of the Company Preferred Securities and
any Company Parity Preferred Securities may exercise this right by written
consent or at a meeting of holders of Company Preferred Securities and Company
Parity Preferred Securities called for such purpose. This right will continue
until all unpaid dividends have been paid in full or until full dividends have
been paid on the Company Preferred Securities and Company Parity Preferred
Securities for two consecutive Dividend Periods. While this right continues, any
vacancy in the office of the additional Directors may be filled only by the
holders of the Company Preferred Securities and any Company Parity Preferred
Securities voting as described above.
A meeting of holders of Company Preferred Securities or Company
Parity Preferred Securities will be called at the request of holders of 25%
(based on the aggregate liquidation preference) of the Company Preferred
Securities and any Company Parity Preferred Securities.
As long as any Company Preferred Securities and Company Parity
Preferred Securities are outstanding, the Company may not, without the consent
or vote of the holders of at least 66-2/3% of the outstanding Company Preferred
Securities and any Company Parity Preferred Securities (based on the aggregate
liquidation preference), voting together as a single class:
(i) change or remove any provision of this Agreement
(including the terms of the Company Preferred Securities), issue any
Company Parity Preferred Securities, redeem or repurchase any Company
Common Securities, or consent to a change in the booking location of
the issuance of the Subordinated Notes to a branch or
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other office of the Bank other than the Cayman Islands branch of the
Bank, in each case, if such action would materially and adversely
affect the rights, preferences, powers or privileges of the Company
Preferred Securities and such Company Parity Preferred Securities;
(ii) to the fullest extent permitted by law, liquidate,
dissolve or terminate the Company without the concurrent liquidation of
the Bank;
(iii) amend or modify the Company's Investment Policies; or
(iv) merge, convert, consolidate, reorganize or effect any
other business combination involving the Company, unless the resulting
entity will have no class or series of equity securities either
authorized or outstanding that ranks ahead of the Company Preferred
Securities as to dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, except the same number of
shares of such equity securities with the same preferences, conversion
or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions
or redemption as the shares of equity securities of the Company that
are authorized and outstanding immediately prior to such transaction,
and each holder of Company Preferred Securities immediately prior to
such transaction shall receive securities with the same preferences,
conversion or other rights, voting powers, restrictions, limitations as
to dividends or other distributions, qualifications or terms or
conditions or redemption of the resulting entity as the Company
Preferred Securities held by such holder immediately prior to the
transaction.
Notwithstanding the foregoing, without the consent of any holder of Company
Preferred Securities or Company Parity Preferred Securities, the Bank may amend
or supplement this Agreement:
(i) to correct or supplement any provision in this Agreement
which may be defective or inconsistent with any other provision
therein, or to make any other provisions with respect to matters or
questions arising under this Agreement, so long as any such action
shall not materially adversely affect the interests of the holders of
Company Preferred Securities; or
(ii) to cure any ambiguity or correct any mistake.
As long as any Company Preferred Securities are outstanding, the
Company may not, without the consent of the holder of each outstanding Company
Preferred Security, authorize, create or increase the authorized amount of, or
issue any class or series of, any equity securities of or limited liability
company interests in the Company, or any warrants, options or other rights
convertible or exchangeable into any class or series of any equity securities of
or limited liability company interests in the Company, ranking prior to the
Company Preferred Securities, either as to dividend rights or rights on
dissolution, liquidation or winding-up of the Company.
(f) Redemption. The Company Preferred Securities may not be redeemed
before the Dividend Payment Date regularly scheduled to occur in ____ 20*,
unless a Tax Event,
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an Investment Company Act Event or a Capital Event occurs, in which case the
Company may redeem the Company Preferred Securities in whole (but not in part)
at any time on not less than 30 nor more than 60 days' notice. On or after the
Dividend Payment Date regularly scheduled to occur in ____ 20*, the Company may
redeem the Company Preferred Securities on any Dividend Payment Date for cash,
in whole or in part, on not less than 30 nor more than 60 days' notice.
[The redemption price for such optional redemptions on or after the
Dividend Payment Date regularly scheduled to occur in _____ 200* and for
redemptions arising from a Tax Event, an Investment Company Act Event of a
Capital Event will be:
(i) 100% of the liquidation preference of the Company
Preferred Securities being redeemed; plus
(ii) an amount equal to unpaid dividends, if any, on the
Company Preferred Securities with respect to the current Dividend
Period (whether or not declared) accrued on a daily basis to the date
fixed for redemption; plus
(iii) an amount equal to unpaid Definitive Dividends for any
prior Dividend Period, without interest and without accumulation of
unpaid Nondefinitive Dividends for any prior Dividend Period.]
[The redemption price for such redemptions on or after the regularly
scheduled Dividend Payment Date in ____ 20* will be:
(i) 100% of the liquidation preference of the Company
Preferred Securities being redeemed; plus
(ii) an amount equal to unpaid dividends, if any, on the
Company Preferred Securities with respect to the current Dividend
Period (whether or not declared) accrued on a daily basis to the date
fixed for redemption; plus
(iii) an amount equal to unpaid Definitive Dividends for any
prior Dividend Period, without interest and without accumulation of
unpaid Nondefinitive Dividends for any prior Dividend Period.
The Company will also have the right to redeem the Company Preferred
Securities in whole (but not in part) at any time prior to the Dividend Payment
Date regularly scheduled to occur in ____ 20*, upon the occurrence of a Tax
Event, an Investment Company Act Event or a Capital Event. The redemption price
for a redemption arising out of a Tax Event resulting from a Change in Tax Law
and relating to the:
(i) imposition of tax on the Trust or the Company; or
(ii) the imposition of withholding tax on the Company's
payment of dividends on the Company Preferred Securities, on the
Trust's payment of dividends on the Trust Preferred Securities, on the
Bank's payment of interest on the Subordinated Notes or on the Bank's
payment under the Bank Subordinated Guarantee,
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(which are the events described in clauses (A), (B) and (C) of the definition of
"Tax Event") will be the redemption price described above for optional
redemptions. Otherwise, the redemption price for such redemptions will be:
(i) the Make Whole Amount; plus
(ii) an amount equal to unpaid dividends, if any, on the
Company Preferred Securities with respect to the current Dividend
Period (whether or not declared) accrued on a daily basis to the date
fixed for redemption; plus
(iii) an amount equal to unpaid Definitive Dividends for any
prior Dividend Period, without interest and without accumulation of
unpaid Nondefinitive Dividends for any prior Dividend Period.]
[The Company will have until the Dividend Payment Date regularly
scheduled to occur in ____ 20* after the occurrence of a Tax Event, an
Investment Company Act Event or a Capital Event to exercise its right to redeem
the Company Preferred Securities.]
Any redemption of Company Preferred Securities must comply with
applicable regulatory requirements, including the prior approval of the Swiss
Federal Banking Commission if then required under applicable guidelines or
policies of the Swiss Federal Banking Commission. If dividends on any Company
Preferred Securities are unpaid, no Company Preferred Securities may be redeemed
unless all outstanding Company Preferred Securities are redeemed and the Company
may not purchase or otherwise acquire any Company Preferred Securities, except
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding Company Preferred Securities.
The Company Preferred Securities will not be subject to any sinking
fund or mandatory redemption and will not be convertible into any other
securities of or limited liability company interests in the Company or any
securities of the Bank.
As long as any Company Preferred Securities are outstanding, other
Company Parity Preferred Securities may not be redeemed or repurchased unless
the Company concurrently redeems an approximately equal proportion of the
aggregate liquidation preference of the outstanding Company Preferred Securities
or each rating agency then rating the Company Preferred Securities informs the
Company in writing that the redemption or repurchase of such Company Parity
Preferred Securities would not result in a reduction or withdrawal of the rating
then assigned by that rating agency to the Company Preferred Securities.
If fewer than all of the outstanding Company Preferred Securities
are to be redeemed, the amount of Company Preferred Securities to be redeemed
shall be determined by the Board of Directors, and the securities to be redeemed
shall be determined by lot or pro rata as may be determined by the Board of
Directors in its sole discretion to be equitable; provided, that such method
satisfies any applicable requirements of any securities exchange on which the
Company Preferred Securities or any Trust Preferred Securities may then be
listed and, if the Company Preferred Securities or Trust Preferred Securities
are then held by DTC or its nominee in the form of a global security, any
applicable requirements of DTC. The Company will promptly notify the registrar
and transfer agent for the Company Preferred Securities in writing
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of the securities selected for redemption and, in the case of any partial
redemption, the liquidation preference to be redeemed.
In the event that payment of the redemption price in respect of any
Company Preferred Securities is improperly withheld or refused and not paid
either by the Company or by the Bank pursuant to the Bank Subordinated
Guarantee, dividends on such Company Preferred Securities, shall continue to
accumulate from the date fixed for redemption to the date of actual payment of
such Redemption Price.
Any Company Preferred Securities redeemed shall be canceled. There
shall be no prescription period in respect of uncollected dividends on the
Company Preferred Securities.
The Preferred Securityholders, by acceptance of such Company
Preferred Securities, acknowledge and agree to the subordination provisions in,
and other terms of, the Company Preferred Securities Guarantee.
(g) Registrar and Transfer Agent. Wilmington Trust Company, or
another entity that the Bank may designate from time to time, will act as
registrar and transfer agent for the Company Preferred Securities.
Registration of transfers of Company Preferred Securities will be
effected without charge by or on behalf of the Company, but upon payment of any
tax or other governmental charges that may be imposed in connection with any
transfer or exchange. The Company will not be required to register or cause to
be registered the transfer of Company Preferred Securities after such Company
Preferred Securities have been called for redemption.
In the event of a partial redemption of the Company Preferred
Securities that would result in a delisting of the Trust Preferred Securities
from any securities exchange on which the Trust Preferred Securities are then
listed, the Company will redeem the Company Preferred Securities in whole.
(h) Notices. Notices to holders of the Company Preferred Securities
will be mailed by first-class mail, postage prepaid, to the holders' addresses
appearing in the Company's records.
(i) Governing Law. The Company Preferred Securities are governed by,
and shall be construed in accordance with, the laws of the State of Delaware
(without regard to principles of conflict of laws).
(j) Additional Information. For so long as any Company Preferred
Securities are outstanding, the Company will furnish to holders and beneficial
owners of Trust Preferred Securities and Company Preferred Securities and to
prospective purchasers designated by such holders upon request the information
required to be delivered pursuant to the Securities Act.
Section 7.4 General Provisions Regarding Subordinated Notes.
(a) The Company may sell the Subordinated Notes only upon the
affirmative vote of both a majority of the Board of Directors and the holders of
two-thirds (based on the
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aggregate liquidation preference) of the Company Preferred Securities and
Company Parity Preferred Securities (if any), voting together as a single class.
(b) The Company may not agree to any modification or amendment to
the Subordinated Notes as long as any Company Preferred Securities or Company
Parity Preferred Securities (if any) are outstanding unless holders of
two-thirds (based on the aggregate liquidation preference) of the Company
Preferred Securities and Company Parity Preferred Securities (if any), voting as
a class, consent to such modification or amendment. Such consent to modification
or amendment of the Subordinated Notes shall not be required if (i) the proposed
amendment or modification would not materially and adversely affect the rights,
preferences, powers or privileges of the holders of the Company Preferred Stock
and (ii) the Company has received a letter from each of Moody's Investors
Service Inc. and Standard & Poor's Ratings Services to the effect that such
amendment will not result in a downgrading of its respective rating then
assigned to the Company Preferred Securities.
ARTICLE VIII
VOTING AND MEETINGS
Section 8.1 Voting Rights of Preferred Securityholders. ii) Except
as shall be otherwise expressly provided in Section 7.3(e) or otherwise herein,
in the By-Laws or in any Certificate of Designations adopted by the Board of
Directors or as otherwise required by the Delaware Act, the Preferred
Securityholders shall have 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 Securityholders.
(b) Notwithstanding that Preferred Securityholders holding Company
Preferred Securities are entitled to vote or consent under the circumstances
described in this Agreement, the By-Laws or any Certificate of Designations, any
of the Company Preferred Securities that are owned by the Bank, the Common
Securityholder, the Company or any of their respective Affiliates, either
directly or indirectly, shall not be entitled to vote or consent and shall, for
the purposes of such vote or consent, be treated as if they were not outstanding
except for Company Preferred Securities purchased or acquired by the Bank or its
Affiliates in connection with transactions effected by or for the account of
customers of the Bank or any of its Affiliates or in connection with the
distribution or trading of or market-making in connection with such Company
Preferred Securities; provided, however, that Persons (other than Affiliates of
the Bank) to whom the Bank or any of its Affiliates have pledged Company
Preferred Securities may vote or consent with respect to such pledged Company
Preferred Securities pursuant to the terms of such pledge.
Section 8.2 Voting Rights of Common Securityholders. Except as
otherwise provided herein, and except as otherwise required by the Delaware Act,
all voting rights of the Securityholders shall be vested exclusively in the
Common Securityholders. The Company Common Securities shall entitle the Common
Securityholders to vote in proportion to their percentage ownership interest in
the Company upon all matters upon which Common Securityholders have the right to
vote. All Common Securityholders shall have the right to vote
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separately as a class on any matter on which the Common Securityholders have the
right to vote regardless of the voting rights of any other Securityholder.
Section 8.3 Meetings of the Securityholders.
(a) Meetings of the Securityholders of any class or of all classes
of Securities may be called at any time by the Chairman of the Board (if any),
the President or the Board of Directors or as provided by this Agreement or the
By-Laws. A meeting of holders of Company Preferred Securities or Company Parity
Preferred Securities will be called at the request of holders of 25% (based on
the aggregate liquidation preference) of the Company Preferred Securities and
any Company Parity Preferred Securities. Except to the extent otherwise
provided, the following provisions shall apply to meetings of Securityholders.
(b) Securityholders may vote in person or by proxy at such meeting.
Whenever a vote, consent or approval of Securityholders is permitted or required
under this Agreement, such vote, consent or approval may be given at a meeting
of Securityholders or by written consent.
(c) Each Securityholder may authorize any Person to act for it by
proxy on all matters in which a Securityholder is entitled to participate,
including waiving notice of any meeting, or voting or participating at a
meeting. Every proxy must be signed by the Securityholder or its
attorney-in-fact. Every proxy shall be revocable at the pleasure of the
Securityholder executing it at any time before it is voted.
(d) Each meeting of Securityholders shall be conducted by the Board
of Directors or by such other Person that the Board of Directors may designate.
(e) Any required approval of Preferred Securityholders may be given
at a separate meeting of such Preferred Securityholders convened for such
purpose or at a meeting of Securityholders of the Company or pursuant to written
consent. The Board of Directors shall cause a notice of any meeting at which
Preferred Securityholders holding Company Preferred Securities or Company Parity
Preferred Securities are entitled to vote pursuant to Section 7.3, any
Certificate of Designations adopted by the Board of Directors or Article XIV of
this Agreement, or of any matter upon which action may be taken by written
consent of such Preferred Securityholders, to be mailed to each holder of record
of the Company Preferred Securities or Company Parity Preferred Securities. Each
such notice shall include a statement setting forth (i) the date of such meeting
or the date by which such action is to be taken, (ii) a description of any
action proposed to be taken at such meeting on which such Preferred
Securityholders are entitled to vote or of such matters upon which written
consent is sought and (iii) instructions for the delivery of proxies or
consents.
(f) Subject to Section 8.3(e) of this Agreement, the Board of
Directors, in their sole discretion, shall establish all other provisions
relating to meetings of Securityholders, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Securityholders, waiver of any such notice, action by consent without a meeting,
the establishment of a record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of any such right to
vote.
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ARTICLE IX
DIVIDENDS
Section 9.1 Dividends.
(a) Subject to the terms of this Article IX, Preferred
Securityholders shall receive periodic dividends, if any, in accordance with
Article VII of this Agreement or any Certificate of Designations duly adopted by
the Board of Directors, and Common Securityholders shall receive periodic
dividends and distributions, subject to Article VII of this Agreement or any
Certificate of Designations duly adopted by the Board of Directors, and to the
provisions of the Delaware Act, when, as and if declared by the Board of
Directors, in its discretion. A dividend shall constitute a distribution within
the meaning of the Delaware Act.
(b) Securityholder shall not be entitled to receive any dividend or
other distribution with respect to any dividend payment date (and any such
dividend or other distribution shall not be considered due and payable),
irrespective of whether such dividend or other distribution is payable
automatically or has been declared by the Directors, until such time as the
Company shall have funds legally available for the payment of such dividend to
such Securityholder pursuant to the terms of this Agreement and the Delaware
Act, and notwithstanding any provision of Section 18-606 of the Delaware Act to
the contrary, until such time, a Securityholder shall not have the status of a
creditor of the Company, or the remedies available to a creditor of the Company;
provided however that a Preferred Securityholder and a holder of Preferred Trust
Securities may exercise such rights or remedies as provided herein or in any
other agreement or document.
Section 9.2 Limitations on Distributions. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not
make a distribution (including a dividend) to any Securityholder on account of a
Company Security if such distribution would violate Section 18-607 of the
Delaware Act or other applicable law.
Section 9.3 No Dividend Instruction.
(a) At any time, and from time to time, the Common Securityholder
may, at its option, deliver to the Company a written instruction in the form of
Annex H hereof on or before the tenth Business Day immediately preceding any
dividend payment date for the Company Preferred Securities instructing the
Company not to pay dividends, or to limit but not prohibit dividends, on such
Dividend Payment Date (a "No Dividend Instruction"). As described in Section
7.3(b)(v), upon receipt of a No Dividend Instruction with respect to the Company
Preferred Securities and except to the extent permitted by such No Dividend
Instruction, no dividend shall become due and payable on the Company Preferred
Securities (or any Company Parity Preferred Securities or Company Junior
Securities (other than the Company Common Securities)) on the dividend payment
date immediately succeeding the date of receipt of such instruction. A No
Dividend Instruction shall only be effective for the dividend payment date
immediately succeeding the date of receipt of such instruction by the Company.
If such dividend payment date is a Mandatory Dividend Payment Date, then such No
Dividend Instruction shall be of no force or effect. If at any time there is
more than one Common Securityholder, a No Dividend Instruction shall not be
effective until signed by all of the Common Securityholders.
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(b) Notwithstanding Section 9.3(a), dividends on the Company
Preferred Securities will be definitive, due and payable on each Mandatory
Dividend Payment Date whether or not a No Dividend Instruction has been given or
is deemed given with respect to such Mandatory Dividend Payment Date.
ARTICLE X
BOOKS AND RECORDS
Section 10.1 Financial Statements. The Board of Directors shall, as
soon as available after the end of each Financial Year of the Company, cause to
be prepared and mailed to each Common Securityholder of record the audited
financial statements of the Company for such Financial Year prepared in
accordance with generally accepted accounting principles. So long as any Company
Preferred Securities are outstanding, the Company will furnish to holders and
beneficial owners of Company Preferred Securities and to prospective purchasers
designated by such holders upon request, the most recent annual audited
financial statements and, if prepared, semi-annual unaudited financial
statements of the Company then available, together with a brief description of
the Company's business.
Section 10.2 Limitation on Access to Records. Each Securityholder
has the right, subject to this Agreement and to reasonable standards established
by the Board of Directors to obtain from the Company from time to time upon
reasonable request for any purpose reasonably related to such Securityholder's
interest as a member in the Company, information regarding the affairs of the
Company. Notwithstanding any provision of this Agreement, the Board of Directors
may, to the maximum extent permitted by law, keep, or cause to be kept,
confidential from the Preferred Securityholders, for such period of time as the
Board of Directors deems reasonable, any information the disclosure of which the
Board of Directors reasonably believes to be in the nature of trade secrets or
other information the disclosure of which the Board of Directors in good faith
believe is not in the best interest of the Company or could damage the Company
or its business or which the Company or the Board of Directors are required by
law or by an agreement with any Person to keep confidential.
Section 10.3 Accounting Method. For both financial and tax reporting
purposes and for purposes of determining profits and losses, the books and
records of the Company shall be kept on the accrual method of accounting applied
in a consistent manner and shall reflect all Company transactions and be
appropriate and adequate for the Company's business.
Section 10.4 Annual Audit. As soon as practical after the end of
each Financial Year, but not later than 90 days after such end, the financial
statements of the Company shall be audited by a firm of independent certified
public accountants selected by the Board of Directors, and such financial
statements shall be accompanied by a report of such accountants containing their
opinion. The cost of such audits shall be an expense of the Company and paid by
the Company.
ARTICLE XI
TAX MATTERS
Section 11.1 Company Tax Returns.
(a) The Common Securityholder is hereby designated as the
Company's "Tax Matters Partner" under Section 6231(a)(7) of the Code and shall
have all the powers and responsibilities of such position as provided in the
Code. The Tax Matters Partner is specifically directed and authorized to take
whatever steps the Bank, in its discretion, deems necessary or desirable to
perfect such designation, including filing any forms or documents with the
Internal Revenue Service and taking such other action as may from time to time
be required under the Treasury Regulations. Expenses incurred by the Tax Matters
Partner in its capacity as such shall be borne by the Company.
(b) The Tax Matters Partner shall cause to be prepared and
timely filed all tax returns required to be filed for the Company. The Tax
Matters Partner may, in its discretion, cause the Company to make or refrain
from making any federal, state or local income or other tax elections for the
Company that it deems necessary or advisable, including, without limitation, any
election under Section 754 of the Code or any successor provision.
Section 11.2 Tax Reports. The Tax Matters Partner shall, as
promptly as practicable and in any event within 90 days of the end of each
Financial Year, cause to be prepared and mailed by the Company to each Preferred
Securityholder of record Internal Revenue Service Schedule K-1 and any other
forms that are necessary or advisable in order to permit the Securityholders to
comply with U.S. federal and any other income tax requirements.
Section 11.3 Taxation as a Partnership. The Company shall take
any necessary steps to be treated as a partnership for U.S. federal income tax
purposes and shall not file any election to be treated as anything other than a
partnership for such purposes.
Section 11.4 Taxation of Securityholders. As provided in
Section 4.4(b), profits shall be allocated to the Preferred Securityholders on a
when-paid basis. The Securityholders intend that allocations of income and loss
for U.S. federal income tax purposes be consistent with the economic allocations
of income under this Agreement.
ARTICLE XII
EXPENSES
Section 12.1 Expenses. Except as otherwise provided in this
Agreement, the Common Securityholder shall be responsible for, and shall pay,
all expenses out of funds of the Company determined by the Board of Directors to
be available for such purpose, provided that such expenses or obligations are
those of the Company or are otherwise incurred by or pursuant to the direction
of the Board of Directors in connection with this Agreement, including, without
limitation:
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(a) all costs and expenses related to the business of
the Company and all routine administrative expenses of the
Company, including the maintenance of books and records of the
Company, the preparation and dispatch to the Securityholders
of checks, financial reports, tax returns and notices required
pursuant to this Agreement and the holding of any meetings of
the Securityholders;
(b) all expenses incurred in connection with any
litigation involving the Company (including the cost of any
investigation and preparation) and the amount of any judgment
or settlement paid in connection therewith (other than
expenses incurred by any Director in connection with any
litigation brought by or on behalf of any Securityholder
against such Director);
(c) all expenses for indemnity or contribution
payable by the Company to any Person;
(d) all expenses incurred in connection with the
collection of amounts due to the Company from any Person;
(e) all expenses incurred in connection with the
preparation of amendments or restatements to this Agreement;
and
(f) all expenses incurred in connection with the
dissolution, winding up or termination of the Company.
Section 12.2 Contribution to Funds of the Company. The Bank
will from time to time either (a) contribute (or cause others, including the
Stamford branch of the Bank, to contribute) to the Company such additional funds
as are necessary in order to enable the Company to pay its expenses described in
Section 12.1 on or before any date when any such expenses are due or (b)
directly pay the Company's expenses then due and payable and not otherwise paid.
ARTICLE XIII
TRANSFERS OF SECURITIES BY SECURITYHOLDERS
AND RELATED MATTERS
Section 13.1 Right of Assignee to Become a Preferred
Securityholder. An assignee of Company Preferred Securities or Company Parity
Preferred Securities shall become a Preferred Securityholder upon compliance
with the provisions of Section 13.5 of this Agreement.
Section 13.2 Events of Cessation of Security Ownership. A
Person shall cease to be a Securityholder upon the lawful assignment of all of
its Securities (including by any redemption or other repurchase by the Company)
or as otherwise provided herein.
Section 13.3 Persons Deemed Preferred Securityholders. The
Company may treat the Person in whose name any Company Preferred Certificate
shall be registered on the books and records of the Company as the sole holder
of such Company Preferred Certificate and
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of the Company Preferred Securities or Company Parity Preferred Securities
represented by such Company Preferred Certificate for purposes of receiving
dividends or other distributions and for all other purposes whatsoever and,
accordingly, shall, to the fullest extent permitted by law, not be bound to
recognize any equitable or other claim to or interest in such Company Preferred
Certificate or in the Company Preferred Securities or Company Parity Preferred
Securities represented by such Company Preferred Certificate on the part of any
other Person, whether or not the Company shall have actual or other notice
thereof. Notwithstanding the foregoing or anything to the contrary herein, the
Company agrees that at any time that the Trust shall be a holder of any Company
Preferred Securities, each holder of a preferred certificate issued by the Trust
shall, upon presentation to the Company or the Registrar of reasonable evidence
thereof, have the right to the fullest extent permitted by law and without the
need for any other action of any other person, including the trustee under the
Trust and any other holder of any other of such preferred certificates, (a) to
enforce, in the name of the Trust, the Trust's rights under the Company
Preferred Securities and the Bank Subordinated Guarantee represented by the
preferred certificates of such holder and (b) to withdraw from the Trust upon
written notice to such trustee and the Company and hold directly the underlying
Company Preferred Securities represented by such preferred certificates (in
which case such holder will be entitled directly to enforce its rights under the
Bank Subordinated Guarantee).
Section 13.4 The Company Preferred Certificates.
(a) Company Preferred Certificates evidencing fractions of
Company Preferred Securities or Company Parity Preferred Securities shall not be
issued. Each Company Preferred Certificate shall be signed, manually or by
facsimile, by the President, any Vice-President or the Secretary of the Company.
Company Preferred Certificates, other than Company Preferred Certificates held
by a Trust, shall also be signed, manually or by facsimile, by the Registrar.
Company Preferred Certificates bearing the signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Company shall be validly issued notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Company Preferred Certificates or did not hold such offices at
the date of delivery of such Company Preferred Certificates. A transferee of a
Company Preferred Certificate shall become a Securityholder, upon due
registration of such Company Preferred Certificate in such transferee's name
pursuant to Section 13.5.
(b) Upon their original issuance, Company Preferred
Certificates evidencing the Company Preferred Securities or Company Parity
Preferred Securities shall be issued in the form of one or more Company
Preferred Certificates.
Section 13.5 Transfer of Company Preferred Certificates.
(a) The Board of Directors shall provide for the registration
and transfer of each class of Company Preferred Certificates in a record thereof
(each a "Securities Register") and shall appoint a securities registrar (the
"Registrar") and transfer agent (the "Transfer Agent") to act on its behalf;
provided, however, that without any action on the part of the Board of Directors
being necessary, Wilmington Trust Company is hereby appointed as the initial
Registrar and Transfer Agent. Subject to the other provisions of this Article
XIII, upon surrender
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for registration of transfer of any Company Preferred Certificate, the Board of
Directors shall cause one or more new Company Preferred Certificates to be
issued in the name of the designated transferee or transferees. Every Company
Preferred Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Board of Directors duly executed by the Preferred Securityholder or his or her
attorney duly authorized in writing. Any registration of transfer shall be
effected upon the Transfer Agent being satisfied with the documents of title and
identity of the Person making the request upon the receipt by the Transfer Agent
of any applicable certificate relating to transfer restrictions as described
below, and subject to such reasonable regulations as the Company may from time
to time establish. Each Company Preferred Certificate surrendered for
registration of transfer shall be canceled by the Board of Directors. A
transferee of a Company Preferred Certificate shall be admitted to the Company
as a Preferred Securityholder and shall be entitled to the rights and subject to
the obligations of a Preferred Securityholder hereunder upon receipt by such
transferee of a Company Preferred Certificate. By acceptance of a Company
Preferred Certificate, each transferee shall be bound by this Agreement. The
transferor of a Preferred Certificate, in whole, shall cease to be a Preferred
Securityholder at the time that the transferee of such Company Preferred
Certificate is admitted to the Company as a Preferred Securityholder in
accordance with this Section 13.5.
(b) Upon surrender for registration of transfer of any Company
Preferred Certificate at the office or agency of the Company or the Registrar
maintained for that purpose, subject to Section 13.6, the Company shall deliver
or cause to be delivered to the Registrar in a form duly executed on behalf of
the Company in the manner provided for in Section 13.4(a), and the Registrar
shall countersign in the manner provided in and to the extent required by
Section 13.4(a) and deliver, in the name of the designated transferee or
transferees, one or more new Company Preferred Certificates in authorized
denominations of a like aggregate liquidation preference dated the date of
execution by such Registrar.
The Registrar shall not be required, (i) to issue, register
the transfer of or exchange any Company Preferred Security or Company Parity
Preferred Securities during a period beginning at the opening of business 15
days before the day of selection for redemption of such Company Preferred
Securities or Company Parity Preferred Securities and ending at the close of
business on the day of mailing of the notice of redemption, or (ii) to register
the transfer of or exchange any Company Preferred Security or Company Parity
Preferred Securities so selected for redemption in whole or in part, except, in
the case of any such Company Preferred Security or Company Parity Preferred
Securities to be redeemed in part, any portion thereof not to be redeemed.
No service charge shall be made for any registration of
transfer or exchange of Company Preferred Certificates, but the Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Company Preferred
Certificates.
Section 13.6 Mutilated, Destroyed, Lost or Stolen Company
Preferred Certificates. If (a) any mutilated Company Preferred Certificate shall
be surrendered to the Registrar, or if the Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Company Preferred
Certificate, and (b) there shall be delivered to the Registrar and
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the Company such security or indemnity as may be required by them to save each
of them harmless, then in the absence of notice that such Company Preferred
Certificate shall have been acquired by a bona fide purchaser, the Company shall
sign, the Registrar shall countersign to the extent required under Section
13.4(a), and the Company and the Registrar shall make available for delivery
(all in the manner provided for in Section 13.4), in exchange for or in lieu of
any mutilated, destroyed, lost or stolen Company Preferred Certificate, a new
Company Preferred Certificate of like class, tenor and denomination. In
connection with the issuance of any new Company Preferred Certificate under this
Section 13.6, the Company or the Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Company Preferred Certificate issued
pursuant to this Section shall constitute conclusive evidence of a limited
liability company interest in the Company corresponding to that evidenced by the
lost, stolen or destroyed Company Preferred Certificate, as if originally
issued, whether or not the lost, stolen or destroyed Company Preferred
Certificate shall be found at any time.
Section 13.7 Restrictions on Transfers of Securities.
(a) Company Preferred Securities or Company Parity Preferred
Securities may not be sold or otherwise transferred unless such securities are
registered under the Securities Act or an exemption from the registration
requirements thereof is available, and the Company Preferred Certificates shall
bear a legend to this effect unless the Bank and the Company determine otherwise
in compliance with applicable law.
(b) No Company Preferred Security or Company Parity Preferred
Security shall be transferred, in whole or in part, except in accordance with
the terms and conditions set forth in this Agreement or any Certificate of
Designations. Any transfer or purported transfer of any Company Preferred
Security or Company Parity Preferred Security not made in accordance with this
Agreement shall be null and void.
(c) The Company Common Securities may be sold, assigned or
otherwise transferred by the Bank to a direct or indirect wholly owned
subsidiary of the Bank, which subsidiary shall be admitted as a member of the
Company with respect to the Company Common Securities transferred upon such
Person's execution and delivery of a counterpart of this Agreement.
ARTICLE XIV
MERGERS, CONSOLIDATIONS AND SALES
Section 14.1 The Company. The Company may not, without the
prior approval of holders of at least 66-2/3% of the outstanding Company
Preferred Securities and any Company Parity Preferred Securities (based on the
aggregate liquidation preference), voting as a single class, merge, convert,
consolidate, reorganize or effect any other business combination involving the
Company, unless the resulting entity will have no class or series of equity
securities either authorized or outstanding that ranks ahead of the Company
Preferred Securities or the Company Parity Preferred Securities as to dividends
or as to the distribution of assets upon liquidation,
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dissolution or winding up, except the same number of shares of such equity
securities with the same preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions, qualifications
or terms or conditions or redemption as the shares of equity securities of the
Company that are authorized and outstanding immediately prior to such
transaction, and each holder of Company Preferred Securities or the Company
Parity Preferred Securities immediately prior to such transaction shall receive
securities with the same preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions, qualifications
or terms or conditions or redemption of the resulting entity as the Company
Preferred Securities or the Company Parity Preferred Securities held by such
holder immediately prior to the transaction.
ARTICLE XV
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 15.1 No Dissolution. The Company shall not be
dissolved by the admission of Securityholders. The death, insanity, retirement,
resignation, expulsion, bankruptcy or dissolution of a Securityholder, or the
occurrence of any other event which terminates the continued membership of a
Securityholder in the Company, shall not in and of itself cause the Company to
be dissolved and its affairs wound up. Upon the occurrence of any such event,
the business of the Company shall be continued without dissolution. The
bankruptcy of a Securityholder (as defined in Section 18-101(1) and 18-304 of
the Delaware Act) shall not cause a Securityholder to cease to be a member of
the Company. Notwithstanding any other provision of this Agreement, each
Securityholder waives any right it might have under the Delaware Act to agree in
writing to dissolve the Company upon the bankruptcy of a Securityholder, or the
occurrence of an event that causes a Securityholder to cease to be a member of
the Company.
Section 15.2 Events Causing Dissolution. The Company shall be
dissolved and its affairs shall be wound up in accordance with the Delaware Act
if any of the following events occur:
(a) a decree or order by a court of competent
jurisdiction shall have been entered adjudging the Company a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of the Company under any applicable federal or
state bankruptcy or similar law, and such decree or order
shall have continued undischarged and unstayed for a period of
90 days; or a decree or order of a court having jurisdiction
in the premises for the appointment of a receiver, liquidator,
trustee, assignee, sequestrator or similar official in
bankruptcy or insolvency of the Company or of all or
substantially all of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and such
decree or order shall have continued undischarged and unstayed
for a period of 90 days or the Company shall institute
proceedings to be adjudicated a voluntary bankrupt, or shall
consent to the filing of a bankruptcy proceeding against it,
or shall file a petition or answer or consent seeking
reorganization, arrangement, adjustment or composition under
any applicable federal or state bankruptcy or similar law, or
shall consent to the filing of any such petition, or shall
consent to the appointment of a receiver, liquidator, trustee,
assignee, sequestrator or
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similar official in bankruptcy or insolvency of the Company or
of all or substantially all of its property, or shall make an
assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they
become due and its willingness to be adjudged a bankrupt, or
limited liability company action shall be taken by the Company
in furtherance of any of the aforesaid purposes;
(b) the Bank is liquidated;
(c) the entry of a decree of judicial dissolution of
the Company under Section 18-802 of the Delaware Act;
(d) in connection with the redemption, repurchase or
exchange of all outstanding Company Preferred Securities;
(e) the written consent of all Securityholders;
(f) at any time there are no members of the Company
unless the Company is continued in accordance with the
Delaware Act or this Agreement; or
(g) the entry of a judgment initiating judicial
liquidation in respect of the Bank under Swiss law or any
other liquidation of the Bank under Swiss law.
Section 15.3 Notice of Dissolution. Upon the dissolution of
the Company, the Board of Directors shall promptly notify the Securityholders of
such dissolution.
Section 15.4 Liquidation. Upon dissolution of the Company, the
Board of Directors or, in the event that the dissolution is caused by an event
described in Sections 15.2(b) or (c) of this Agreement and there are no
Directors, a Person or Persons who may be approved by the Preferred
Securityholders holding not less than a majority in liquidation amount, as
liquidating trustees, shall immediately commence to wind up the Company's
affairs; provided, however, that a reasonable time shall be allowed for the
orderly liquidation of the assets of the Company and the satisfaction of
liabilities to creditors so as to minimize the losses attendant upon a
liquidation. The proceeds of liquidation shall be distributed, as realized, in
the manner provided in Section 18-804 of the Delaware Act, subject to the
provisions of Section 15.5.
Section 15.5 Certain Restrictions on Liquidation Payments. In
the event of any voluntary or involuntary dissolution of the Company (other than
as set forth in any Certificate of Designations), Preferred Securityholders
holding Company Preferred Securities or Company Parity Preferred Securities at
the time outstanding shall be entitled to receive out of the assets of the
Company legally available for distribution to Securityholders, before any
distribution of assets is made to Common Securityholders or any other Company
Junior Securities, liquidating distributions in respect of the Company Preferred
Securities or Company Parity Preferred Securities in the amount of the
liquidation preference, plus an amount equal to unpaid dividends, if any,
thereon with respect to the current Dividend Payment accrued on a daily basis to
the date of liquidation, plus an amount equal to unpaid Definitive Dividends for
any prior Dividend Period, but without interest and without accumulation of
unpaid Nondefinitive Dividends for any prior dividend period. If, upon any such
liquidation, the liquidating distribution can be paid only in part because the
Company has insufficient assets available to pay in full the aggregate
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Liquidation Distribution, then the amounts payable directly by the Company on
the Company Preferred Securities or Company Parity Preferred Securities shall be
paid on a pro rata basis.
Section 15.6 Termination. The Company shall terminate when all
of the assets of the Company have been distributed in the manner provided for in
this Article XV, and the Certificate of Formation shall have been canceled in
the manner required by the Delaware Act.
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Amendments. This Agreement may be amended by a
written instrument executed by an Officer designated by the Board of Directors
without the consent of any Preferred Securityholder; provided, however, that no
amendment shall be made, and any such purported amendment shall be void and
ineffective, to the extent that such amendment (a) would have a material adverse
effect on a Preferred Securityholder (including, without limitation, amendments
to Sections 6.2 and 6.7), (b) would result in causing the Company to be treated
as anything other than a partnership for purposes of United States federal
income taxation would result in the Company being deemed to be required to
register under the Investment Company Act, or (c) has not received the prior
requisite approval of the holders of the Company Preferred Securities and the
Company Parity Preferred Securities, as applicable, as may be expressly provided
in this Agreement, the By-Laws or any Certificate of Designations duly adopted
by the Board of Directors.
Section 16.2 Amendment of Certificate of Formation. In the
event this Agreement shall be amended pursuant to Section 16.1, the Board of
Directors shall cause the Certificate of Formation to be amended to reflect such
change if it deems such amendment of the Certificate of Formation to be
necessary or appropriate.
Section 16.3 Successors. This Agreement shall be binding as to
the executors, administrators, estates, heirs and legal successors, or nominees
or representatives, of the Securityholders.
Section 16.4 Law; Severability. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
In particular, this Agreement shall be construed to the maximum extent possible
to comply with all of the terms and conditions of the Delaware Act. If,
nevertheless, it shall be determined by a court of competent jurisdiction that
any provisions or wording of this Agreement shall be invalid or unenforceable
under the Delaware Act or other applicable law, such invalidity or
unenforceability shall not invalidate the entire Agreement. In that case, this
Agreement shall be construed so as to limit any term or provision so as to make
it enforceable or valid within the requirements of applicable law, and, in the
event such term or provisions cannot be so limited, this Agreement shall be
construed to omit such invalid or unenforceable provisions. If it shall be
determined by a court of competent jurisdiction that any provision relating to
the distributions and allocations of the Company or to any fee payable by the
Company is invalid or unenforceable, this Agreement shall be construed or
interpreted so as (a) to make it enforceable
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or valid and (b) to make the distributions and allocations as closely equivalent
to those set forth in this Agreement as is permissible under applicable law.
Section 16.5 Filings. Following the execution and delivery of
this Agreement, the Board of Directors shall cause to be promptly prepared any
documents required to be filed and recorded under the Delaware Act, and the
Board of Directors shall cause to be promptly filed and recorded each such
document in accordance with the Delaware Act and, to the extent required by
local law, to be filed and recorded or notice thereof to be published in the
appropriate place in each jurisdiction in which the Company may hereafter
establish a place of business. The Board of Directors shall also promptly cause
to be filed, recorded and published such statements of fictitious business name
and any other notices, certificates, statements or other instruments required by
any provision of any applicable law of the United States or any state or other
jurisdiction which governs the conduct of its business from time to time.
Section 16.6 Power of Attorney. Each Preferred Securityholder
does hereby constitute and appoint each Person specifically authorized by the
Board of Directors to act as its true and lawful representative and
attorney-in-fact, in its name, place and stead to make, execute, sign, deliver
and file (a) any amendment of the Certificate of Formation required because of
an amendment to this Agreement or in order to effectuate any change in the
ownership of the Company Securities, (b) any amendments to this Agreement made
in accordance with the terms hereof and (c) all such other instruments,
documents and certificates which may from time to time be required by the laws
of the United States of America, the State of Delaware or any other
jurisdiction, or any political subdivision or agency thereof, to effectuate,
implement and continue the valid and subsisting existence of the Company or to
dissolve the Company or for any other purpose consistent with this Agreement and
the transactions contemplated hereby.
The power of attorney granted hereby is coupled with an
interest and shall (a) survive and not be affected by the subsequent death,
incapacity, disability, dissolution, termination or bankruptcy of the Preferred
Securityholder granting the same or the transfer of all or any portion of such
Preferred Securityholder's Preferred Securities and (b) extend to such Preferred
Securityholder's successors, assigns and legal representatives.
Section 16.7 Exculpation.
(a) No Director or Officer shall have personal liability to
the Company or the Securityholders for monetary damages for breach of, in the
case of a Director, such Director's fiduciary duty (if any) or, in the case of a
Director or an Officer, for any act or omission performed or omitted by such
Director or Officer in good faith on behalf of the Company, except for such
Director's or Officer's gross negligence or willful misconduct.
(b) Each Director and Officer shall be fully protected in
relying in good faith upon the records of the Company and upon such information,
opinions, reports or statements presented to the Company by any Person as to
matters that such Director or Officer reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any
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other facts pertinent to the existence and amount of assets from which
distributions to Securityholders might properly be paid.
Section 16.8 Indemnification. To the fullest extent permitted
by applicable law, each Director and Officer shall be entitled to
indemnification from the Company for any loss, damage, claim or expense
(including reasonable attorney's fees) incurred by such Director or Officer by
reason of any act or omission performed or omitted by such Director or Officer
in good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of authority conferred on such Director or Officer by this
Agreement, except with respect to any act or omission determined by a court of
competent jurisdiction to have constituted gross negligence or wilful misconduct
of such Director or Officer; provided, however, that any indemnity under this
Section 16.8 shall be provided out of and to the extent of Company assets only,
and no Securityholder shall have any personal liability on account thereof. The
right to indemnification under this Section 16.8 is a contract right. The
Company may purchase and maintain insurance to protect any director or officer
against liability asserted against him or her, or incurred by him or her,
arising out of his or her status as such.
Without limiting the foregoing, the Company's directors shall
have no personal liability to the Company or its Securityholders for monetary
damages (i) for not voting to take enforcement action with respect to the
Subordinated Notes or other Affiliate Securities owned by the Company, if any,
prior to the occurrence of a Bankruptcy Event or (ii) at any time for breach of
any such director's fiduciary duty (if any) except for such director's gross
negligence or willful misconduct.
Section 16.9 Additional Documents. Each Preferred
Securityholder, upon the request of the Board of Directors, agrees to perform
all further acts and execute, acknowledge and deliver any documents that may be
reasonably necessary to carry out the provisions of this Agreement.
Section 16.10 Notices. All notices provided for in this
Agreement shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(i) If given to the Company, at the address set forth
below:
UBS AG
677 Washington Boulevard
Stamford, CT 06901
Attention:
Telephone:
Facsimile:
With copies to:
UBS AG
299 Park Avenue
New York, NY 10171
Attention:
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Telephone:
Facsimile:
(ii) If given to any Securityholder, at the address set forth
in the Securities Register.
Subject to Section 7.3 of this Agreement or any Certificate of
Designations, each such notice, request or other communication shall be
effective (a) if given by telecopier, when transmitted to the number specified
in such registration books and the appropriate confirmation is received, (b) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid, or (c) if given by any
other means, when delivered at the address specified in the Securities Register.
Section 16.11 Nominee Letter. At the request of any Person who
is or has agreed to become a holder of Company Preferred Securities as a nominee
or on behalf of another Person, the Company shall provide such nominee with a
letter substantially in the form of Annex I.
Section 16.12 Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original of this
Agreement and all of which together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Bank and the Common Securityholder
have executed this Agreement as of the date first above stated.
UBS AG
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Accepted and agreed by:
UBS Preferred Funding Trust VIII
By: Wilmington Trust Company,
not in its individual capacity,
but solely as Trustee
By: ____________________________
Name:
Title:
Annex A
to the Amended and Restated
Limited Liability Company Agreement
[Form Of UBS AG Subordinated Guarantee Agreement]
[Filed as Exhibit 4.19 herewith]
A-1
Annex B
to the Amended and Restated
Limited Liability Company Agreement
[FORM OF] ADMINISTRATION AGREEMENT
between
UBS PREFERRED FUNDING COMPANY LLC VIII
and
UBS AG,
acting through its Stamford branch
Dated as of _____ __, 200*
TABLE OF CONTENTS
Page
Section 1. Administrative Services................................ [ ]
Section 2. Compensation; Indemnities.............................. [ ]
Section 3. Term .................................................. [ ]
Section 4. Obligation to Supply Information....................... [ ]
Section 5. The Administrator's Liability and Standard of Care..... [ ]
Section 6. Reliance on Information Obtained from Third Parties.... [ ]
Section 7. Notices................................................ [ ]
Section 8. Amendment.............................................. [ ]
Section 9. No Joint Venture....................................... [ ]
Section 10. Assignment............................................. [ ]
Section 11. Governing Law.......................................... [ ]
Section 12. Submission to Jurisdiction............................. [ ]
Section 13. Execution in Counterparts.............................. [ ]
Section 14. Section Headings....................................... [ ]
Section 15. Entire Agreement....................................... [ ]
ADMINISTRATION AGREEMENT (this "Agreement"), dated as of _____ __,
200*, between UBS Preferred Funding Company LLC VIII, a Delaware limited
liability company (the "Company") and UBS AG, a bank organized under the laws of
Switzerland (the "Bank"), acting through its Stamford branch, as administrator
(the "Administrator").
WITNESSETH
WHEREAS, the Company proposes to engage in the following activities
(among others):
(a) to purchase newly issued undated subordinated notes (the
"Subordinated Notes"), issued by the Bank through its Cayman Islands branch
office, in an aggregate principal amount of $*;
(b) to issue (i) [2,000] common limited liability company interests
in the Company (the "Company Common Securities"), representing all of the common
limited liability company interests in the Company, to the Bank, acting through
its Cayman Islands branch, at an aggregate purchase price of $*; and (ii) *%
Noncumulative Company Preferred Securities with an aggregate liquidation
preference of $* (the "Company Preferred Securities"), representing preferred
limited liability company interests in the Company to UBS Preferred Funding
Trust VIII, a Delaware statutory business trust (the "Trust"), the proceeds of
which will be used to purchase the Subordinated Notes and pay certain expenses
relating to the foregoing offering;
(c) to enter into any agreements in connection with the foregoing
(together with the Amended and Restated Limited Liability Company Agreement of
the Company (the "Company Agreement"), the "Transaction Documents");
(d) to enter into any agreement providing for the management and
administration of the activities of the Company; and
(e) to engage in such activities and to exercise such powers
permitted to limited liability companies under the laws of the State of Delaware
that are incidental to or connected with the foregoing business or purposes or
necessary to accomplish the foregoing or any other lawful purpose which is, in
each case, not inconsistent with the Company Agreement as amended from time to
time; and
WHEREAS, the Company has requested that the Administrator provide
assistance to the Company and perform various services for the Company, and the
Administrator is willing to furnish such services on the terms and conditions
herein set forth. In connection herewith, the Administrator has also requested
certain indemnities from the Company.
NOW, THEREFORE, in mutual consideration of these premises, the
parties hereto agree as follows:
Section 1. Administrative Services. The Administrator hereby agrees
to provide corporate management and administrative services to the Company and
the Company hereby authorizes the Administrator to provide such services,
including:
B-3
(a) taking such actions, as Administrator on behalf of the Company
(including through directors or officers of the Company or through employees of
the Administrator who are authorized by the Company), as are necessary or
desirable for the Company to remain organized and qualified in all appropriate
jurisdictions and to carry out its business in such manner as the directors of
the Company determine and as the Company shall from time to time reasonably
request in order to effect transactions of the type described in the Preliminary
Statement to this Agreement;
(b) providing, or causing to be provided, clerical, bookkeeping and
other services necessary and appropriate for the Company, including, without
limitation, the following services:
(i) providing such banking and investment services as may be
agreed upon from time to time;
(ii) providing from its employees signatories to the Company's
bank and investment accounts;
(iii) maintaining any books and records that are required in
the ordinary course of the business of the Company (the "Business"),
are agreed between the parties and are required in order to comply with
any laws or regulations of the State of Delaware and in such form and
manner as may be agreed upon from time to time;
(iv) preparing such periodic reports and accounting
information as may be requested from time to time by the board of
directors;
(v) dealing with correspondence relating to the Business;
(vi) providing a Company Secretary;
(vii) providing non-exclusive telephone, telecopy, telex, post
office box and duplicating facilities and within its premises and such
other non-exclusive space and ancillary services as may be necessary
for the other purposes of the Business including facilities for
meetings of the directors of the Company from time to time;
(viii) complying with the terms of the Company Agreement all
agreements to which the Company is a party and, without prejudice to
the foregoing, not entering into, on behalf of the Company, any
commitments, loans or obligations nor charging, mortgaging, pledging,
encumbering or otherwise restricting or disposing of the Company's
property or assets and generally not taking any action inconsistent
with the Business; and
(ix) keeping confidential all documents, materials and other
information relating to the Business and not disclosing any of the
aforesaid without the prior consent of the Company unless it shall in
good faith determine that such disclosure is necessary to protect the
interests of the Administrator; and
B-4
(c) undertaking such other administrative services as may be
reasonably requested by the Company, including providing notices to third
parties on behalf of the Company and providing such other services as are
necessary or desirable for the Company to carry out its duties and obligations
under the Transaction Documents.
Any of the above services may, if the Administrator or the Company
deems it necessary or desirable, be subcontracted by the Administrator; provided
that prior written consent is obtained from the Company of such subcontract and,
provided further that notwithstanding such subcontract, the Administrator shall
remain responsible for performance of the services set forth above.
Section 2. Compensation; Indemnities.
(a) The Company agrees to pay to the Administrator, in consideration
for the Administrator's services described in paragraphs (a)-(c) of Section 1,
an annual fee as determined periodically by the Company and the Administrator,
which fee in no event shall exceed the value of the services provided by the
Administrator to the Company on an arm-length basis.
(b) The Company shall pay and shall indemnify and hold harmless the
Administrator and the Administrator's directors, officers, employees and agents
(each of the foregoing an "Administrator Indemnified Person") from and against
any and all losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, damages, costs and expenses (including, without
limitation, under any securities laws, rules or regulations) arising from or
relating to the transactions contemplated hereby (all of the foregoing being
collectively referred to as "Indemnified Amounts"), provided, however, that the
Company shall have no obligation to indemnify any Administrator Indemnified
Person hereunder in respect of Indemnified Amounts to the extent any such
losses, liabilities, actions, suits, judgments, demands, damages, costs and
expenses resulted from the negligence or willful misconduct of such
Administrator Indemnified Person.
(c) The Administrator shall pay and shall protect, indemnify and
hold harmless the Company and its directors, officers, employees and agents and
all Persons affiliated with the Company (each of the foregoing a "Company
Indemnified Person") from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, damages, costs
and expenses (including, without limitation, reasonable fees and expenses of
counsel) of any nature (including, without limitation, under any securities
laws, rules or regulations) arising from or relating to the Administrator's
negligence or willful misconduct or that of its directors, officers, employees
and agents in connection with the exercise of the Administrator's rights and/or
the performance of the Administrator's duties hereunder.
(d) This Section 2 shall survive the termination of this Agreement.
Section 3. Term. The Company may terminate this Agreement upon at
least 90 days' written notice to the Administrator.
Section 4. Obligation to Supply Information. The Company shall
forward to the Administrator such information in connection with the Transaction
Documents as the
B-5
Administrator may from time to time reasonably request in connection with the
performance of its obligations hereunder.
Section 5. The Administrator's Liability and Standard of Care. The
Administrator assumes no liability for anything other than the services rendered
by it pursuant to Section 1. Without limiting the generality of the foregoing,
it is agreed that the Administrator assumes no liability with respect to any of
the Company's obligations under the Transaction Documents.
The Administrator shall perform its duties hereunder diligently and
with the same standard of care exercised by a prudent person in connection with
the performance of the same or similar duties and, in no event with less care
than the Administrator exercises or would exercise in connection with the same
or similar obligations if those obligations were the direct obligations of the
Administrator.
Section 6. Reliance on Information Obtained from Third Parties. The
Company recognizes that the accuracy and completeness of the records maintained
and the information supplied by the Administrator hereunder is dependent upon
the accuracy and completeness of the information obtained by the Administrator
from the parties to the Transaction Documents and other sources and the
Administrator shall not be responsible for any inaccuracy in the information so
obtained or for any inaccuracy in the records maintained by the Administrator
hereunder that may result therefrom.
Section 7. Notices. All notices and other communications to be given
shall be in writing (including by facsimile transmission) and delivered to the
relevant address or number specified below (or such other address or number as
may be notified in accordance with this Section 7) and shall take effect at the
time of receipt.
The Company:
UBS Preferred Funding Company LLC VIII
c/o UBS AG
677 Washington Boulevard
Stamford, CT 06901
Attention:
Telephone:
Facsimile:
With copies to:
UBS AG
299 Park Avenue
New York, NY 10171
Attention:
Telephone:
Facsimile:
B-6
The Administrator:
UBS AG (Stamford)
UBS AG
677 Washington Boulevard
Stamford, CT 06901
Attention:
Telephone:
Facsimile:
With copies to:
UBS AG
299 Park Avenue
New York, NY 10171
Attention:
Telephone:
Facsimile:
Section 8. Amendment. No waiver, alteration, modification, amendment
or supplement of the terms of this Agreement shall be effective unless
accomplished by written instrument signed by all parties hereto.
Section 9. No Joint Venture. Nothing contained in this Agreement
shall constitute the Administrator and the Company as members of any
partnership, joint venture, association, syndicate or unincorporated business.
Section 10. Assignment. This Agreement may not be assigned by any
party without the prior written consent of the other parties, provided that the
parties hereby agree that if the Bank sells, assigns or otherwise transfers the
Company Common Securities to a wholly owned subsidiary of the Bank, the Bank's
rights (and obligations) under this Agreement (including those of the
Administrator) may be assigned to such subsidiary. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 11. GOVERNING LAW. THIS ADMINISTRATION AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
UNITED STATES OF AMERICA.
Section 2. Submission to Jurisdiction. The Bank irrevocably consents
and agrees, that any legal action, suit or proceeding against it with respect to
its obligations, liabilities or any other matter arising out of or in connection
with this Agreement may be brought in the courts of the State of New York or the
courts of the United States of America located in The City of New York and until
amounts due and to become due under this Agreement have been paid, hereby
irrevocably consents and submits to the non-exclusive jurisdiction of each such
court in personam, generally and unconditionally with respect to any such
action, suit or proceeding for itself and in respect of its properties, assets
and revenues. Service of process upon the branch in
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any such action, suit or proceeding shall be deemed in every respect service of
process upon the Bank. The Bank hereby irrevocably and unconditionally waives,
to the fullest extent permitted by law, except as otherwise provided for in this
Agreement, any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions, suit or proceedings brought in the United
States Federal courts located in The City of New York or the courts of the State
of New York and hereby further irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. The
provisions of this Section 12 shall survive any termination of this Agreement,
in whole or in part.
Section 13. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute one and the same Agreement.
Section 14. Section Headings. Section headings used in this
Agreement are for convenience only and shall not affect the construction of this
Agreement.
Section 15. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters covered hereby
and supersedes all prior agreements and understandings with respect to such
matters between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
UBS AG,
acting through its Stamford branch
By: ______________________________________
Name:
Title:
By: ______________________________________
Name:
Title:
UBS PREFERRED FUNDING COMPANY LLC VIII
By: ______________________________________
Name:
Title:
B-8
Annex C
to the Amended and Restated
Limited Liability Company Agreement
BY-LAWS
OF
UBS PREFERRED FUNDING COMPANY LLC VIII
These By-laws have been established as the By-laws of UBS Preferred
Funding Company LLC VIII, a Delaware limited liability company (the "Company")
pursuant to the Amended and Restated Limited Liability Company Agreement, dated
as of ____ __, 200* (as from time to time amended, modified or supplemented, the
"Agreement"), pursuant to which the Company's existence has been continued, and,
together with the Agreement and Annexes, C, E, F, G, H and I thereto, are deemed
to be the limited liability company agreement of the Company for purposes of the
Delaware Act. In the event of any inconsistency between the Agreement and these
By-laws, the provisions of the Agreement shall control.
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
ARTICLE I
SECURITYHOLDERS
Section 1.1. Annual Meetings. An annual meeting of Securityholders
may be held at such date, time and place either within or without the State of
Delaware if and as may be decided and designated by the Board of Directors from
time to time; provided, however the Company shall not be required to have an
annual meeting of Securityholders. Any other proper business may be transacted
at the annual meeting.
Section 1.2. Special Meetings. Special meetings of Securityholders
may be called at any time by the Chairman of the Board, if any, the President or
the Board of Directors, to be held at such date, time and place either within or
without the State of Delaware as may be stated in the notice of the meeting. A
special meeting of Securityholders shall be called by the Secretary upon the
written request, stating the purpose of the meeting, of Securityholders who
together own of record a majority of the Securities entitled to vote at such
meeting.
Section 1.3. Notice of Meetings. Whenever Securityholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, the written
notice of any meeting shall be given not less than ten nor more than sixty days
before the date of the meeting to each Securityholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the Securityholder at such
Securityholder's address as it appears on the records of the Company.
Section 1.4. Adjournments. Any meeting of Securityholders, annual or
special, may be adjourned from time to time, to reconvene at the same or some
other place, and notice
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need not be given of any such adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Company may transact any business which might have been transacted
at the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each Securityholder of record
entitled to vote at the meeting.
Section 1.5. Quorum. At each meeting of Securityholders, except
where otherwise provided by law or the Agreement or these By-laws, the holders
of at least 50% of the Securities entitled to vote on a matter at the meeting,
present in person or represented by proxy, shall constitute a quorum. In the
absence of a quorum of the holders of Securities entitled to vote on a matter,
the holders of a majority of the Securities present or represented may adjourn
such meeting from time to time in the manner provided by Section 1.4 of these
By-laws until a quorum shall be so present or represented. Securities other than
Common Securities belonging on the record date for the meeting to the Company or
an Affiliate of the Company shall neither be entitled to vote nor be counted for
quorum purposes.
Section 1.6. Organization. Meetings of Securityholders shall be
presided over by the Chairman of the Board, if any, or in the absence of the
Chairman of the Board by the President, or in the absence of the President by a
Vice President, or in the absence of the foregoing persons, by a chairman
designated by the Board of Directors, or in the absence of such designation, by
a chairman chosen at the meeting. The Secretary, or in the absence of the
Secretary, an Assistant Secretary, shall act as secretary of the meeting, but in
the absence of the Secretary and any Assistant Secretary, the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Unless otherwise provided in the
Agreement, each Securityholder entitled to vote at any meeting of
Securityholders shall have voting power proportionate to the outstanding amount,
based on initial issue price, of the Securities held by such Securityholder that
have voting power upon the matter in question. Each Securityholder entitled to
vote at a meeting of Securityholders or to express consent or dissent to action
in writing without a meeting may authorize another person or persons to act for
such Securityholder by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power, regardless of whether the interest with which it
is coupled is an interest in the Securities themselves or an interest in the
Company generally. A Securityholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary of the Company. Voting at meetings of
Securityholders need not be by written ballot unless the holders of a majority
of the outstanding Securities entitled to vote thereon present in person or
represented by proxy at such meeting shall so determine. Directors shall be
designated, removed and replaced as provided in the Agreement and Article II
hereof. Other than in the case of any matter expressly set forth in the
Agreement for which a higher vote may be required, the affirmative vote of the
holders of a majority of the Securities present in person or represented by
proxy at the meeting and entitled to vote on the subject matter shall be the act
of the Securityholders.
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Section 1.8. Fixing Date for Determination of Securityholders of
Record. In order that the Company may determine the Securityholders entitled to
notice of or to vote at any meeting of Securityholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than sixty
nor less than ten days before the date of such meeting. If no record date is
fixed by the Board of Directors, the record date for determining Securityholders
entitled to notice of or to vote at a meeting of Securityholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held. A determination of Securityholders of record
entitled to notice of or to vote at a meeting of Securityholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
In order that the Company may determine the Securityholders entitled
to consent to action in writing without a meeting, the Board of Directors may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining Securityholders entitled to consent to action in writing without a
meeting, when no prior action by the Board of Directors is required by law,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Company by delivery to
(a) its registered office in the State of Delaware, (b) its principal place of
business, or (c) an Officer or agent of the Company having custody of the book
in which proceedings of meetings of Securityholders are recorded. Delivery made
to the Company's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
law, the record date for determining Securityholders entitled to consent to
action in writing without a meeting shall be at the close of business on the day
on which the Board of Directors adopts the resolution taking such prior action.
In order that the Company may determine the Securityholders entitled
to receive payment of any distribution or allotment of any rights or the
Securityholders entitled to exercise any rights in respect of any exchange of
Securities, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty days prior to such action. If no record date
is fixed, the record date for determining Securityholders for any such purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section 1.9. List of Securityholders Entitled to Vote. The Secretary
shall prepare and make, at least ten days before every meeting of
Securityholders, a complete list of the Securityholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
Securityholder and the amount of Securities registered in the name of each
Securityholder. Such list shall be open to the examination of any
Securityholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days
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prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any Securityholder who is present.
Section 1.10. Consent of Securityholders in Lieu of Meeting. Unless
otherwise provided in the Agreement or by law, any action required by law to be
taken at any annual or special meeting of Securityholders of the Company, or any
action which may be taken at any annual or special meeting of such
Securityholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding Securities having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all Securities entitled to vote thereon were
present and voted and shall be delivered to the Company by delivery to (a) its
registered office in the State of Delaware by hand or by certified mail or
registered mail, return receipt requested, (b) its principal place of business,
or (c) an Officer or agent of the Company having custody of the book in which
proceedings of meetings of Securityholders are recorded. Every written consent
shall bear the date of signature of each Securityholder who signs the consent
and no written consent shall be effective to take the action referred to therein
unless, within sixty days of the earliest dated consent delivered in the manner
required by this By-Law to the Company, written consents signed by holders
representing a sufficient amount of Securities to take action are delivered to
the Company by delivery to (a) its registered office in the State of Delaware by
hand or by certified or registered mail, return receipt requested, (b) its
principal place of business, or (c) an Officer or agent of the Company having
custody of the book in which proceedings of meetings of Securityholders are
recorded. Prompt notice of the taking of the action without a meeting by less
than unanimous written consent shall be given to those Securityholders who have
not consented in writing.
ARTICLE II
BOARD OF DIRECTORS
2.1. Number; Powers; By-laws. The business and affairs of the
Company shall be managed by or under the direction of a Board composed of not
less than three nor more than five Directors. The Board shall manage the
business and affairs of the Company and may exercise all powers in connection
therewith, except for such powers as are required to be exercised by
Securityholders, all in accordance with the Agreement, these By-laws and
applicable law. Except to the extent that the Board or the Securityholders
confer such authority on a Director, no Director shall have the authority to
bind the Company.
2.2. Voting Power. Each Director shall, in the consideration of any
matter by the Board, have a single vote at the time such vote is taken or made
(whether at a meeting or by written consent). Except where a greater percentage
approval may be provided for herein or in the Agreement or by law, an action
shall be deemed approved by the Board only if it has been approved by a majority
of the Directors.
2.3. Quorum. At all meetings of the Board, the presence of at least
a majority of Directors shall constitute a quorum for the transaction of
business. In case at any meeting of the
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Board a quorum shall not be present, any Director present may adjourn the
meeting from time to time until a quorum shall be present.
2.4. Designation; Removal; Replacement. The term of office of a
Director shall be until the earliest of the following events: (i) his or her
successor is designated or (ii) he or she resigns or is removed. Any Director
may be removed, with or without cause by majority vote of the remaining
Directors. In the event of the resignation, removal or death of a Director, such
Director shall be replaced by another person designated by majority vote of the
remaining Directors. Any Director may resign at any time upon written notice to
the Board of Directors or to the President or the Secretary of the Company. Such
resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective.
Section 2.5. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware and
at such times as the Board may from time to time determine, and if so determined
notice thereof need not be given.
Section 2.6. Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board, by the President or by
any two Directors. Reasonable notice thereof shall be given by the person or
persons calling the meeting.
Section 2.7. Participation in Meetings by Conference Telephone
Permitted. Unless otherwise restricted by the Agreement or these By-laws, the
Board of Directors, or any committee designated by the Board, may participate in
a meeting of the Board or of such committee, as the case may be, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this By-Law shall constitute presence in person at such
meeting.
Section 2.8. Organization. Meetings of the Board of Directors shall
be presided over by the Chairman of the Board, or in the absence of the Chairman
of the Board by the President, or in their absence, by a chairman chosen at the
meeting. The Secretary, or in the absence of the Secretary, an Assistant
Secretary, shall act as secretary of the meeting, but in the absence of the
Secretary and any Assistant Secretary, the chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 2.9. Action by Directors Without a Meeting. Unless otherwise
restricted by the Agreement or these By-laws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting if all of the Board or of such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
ARTICLE III
COMMITTEES
Section 3.1. Committees. The Board of Directors may, by resolution
of the Board adopted by majority vote, designate one or more committees, each
committee to consist of
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one or more of the Directors of the Company. Any such committee, to the extent
provided in the resolution of the Board of Directors or in these By-laws, shall
have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Company, and may authorize the
seal of the Company to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Formation, adopting an agreement of merger, consolidation or
conversion, recommending to the Securityholders the sale, lease or exchange of
all or substantially all of the Company's property and assets, recommending to
the Securityholders a dissolution of the Company or a revocation of a
dissolution, amending these By-laws and, unless the resolution, these By-laws or
the Agreement expressly so provides, no such committee shall have the power or
authority to authorize the issuance of Securities, to adopt a certificate of
ownership and merger, consolidation or conversion or to remove or indemnify
Officers or Directors.
Section 3.2. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board may adopt, amend and
repeal rules for the conduct of its business. In the absence of a provision by
the Board or a provision in the rules of such committee to the contrary, a
majority of the members of such committee shall constitute a quorum for the
transaction of business, the vote of a majority of the members present at a
meeting at the time of such vote if a quorum is then present shall be the act of
such committee, and in other respects each committee shall conduct its business
in the same manner as the Board conducts its business pursuant to Article II of
these By-laws.
ARTICLE IV
OFFICERS
Section 4.1. Officers; Election. As soon as practicable after the
annual meeting of Securityholders in each year, the Board of Directors shall
elect a President and a Secretary, and may also elect one or more Vice
Presidents, one or more Assistant Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers and such other
Officers as the Board may deem desirable or appropriate and may give any of them
such further designations or alternate titles as it considers desirable. Any
number of offices may be held by the same person unless the Agreement or these
By-laws otherwise provide.
Section 4.2. Term of Office; Resignation; Removal; Vacancies. Unless
otherwise provided in the resolution of the Board of Directors electing any
Officer, each Officer shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Any Officer
may resign at any time upon written notice to the Board or to the President or
the Secretary of the Company. Such resignation shall take effect at the time
specified therein, and, unless otherwise specified therein, no acceptance of
such resignation shall be necessary to make it effective. The Board may remove
any Officer with or without cause at any time. Any such removal shall be without
prejudice to the contractual rights of such Officer, if any, with the Company,
but the election of an Officer shall not of itself create contractual rights.
Any vacancy occurring in any office of the Company by death, resignation,
removal or otherwise may be filled by the Board at any regular or special
meeting.
Section 4.3. Powers and Duties. The Officers of the Company shall
have such powers and duties in the management of the Company as shall be stated
in these By-laws or in a
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resolution of the Board of Directors which is not inconsistent with these
By-laws and, to the extent not so stated, as generally pertain to comparable
offices in a corporation organized under the General Corporation Law of the
State of Delaware, subject to the control of the Board. The Secretary shall have
the duty to record the proceedings of the meetings of the Securityholders, the
Board of Directors and any committees in a book to be kept for that purpose. The
Board may require any Officer, agent or employee to give security for the
faithful performance of his or her duties.
ARTICLE V
SECURITIES
Section 5.1. Certificates for Securities. The Preferred Securities
in the Company shall be registered in certificated form. If such certificate is
manually countersigned by a transfer agent or by a registrar, any other
signature on the certificate may be a facsimile. In case any Officer who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such Officer before such certificate is issued, it may be
issued by the Company with the same effect as if such person were such Officer
at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Certificates; Issuance of New
Certificates. The Company may issue a new certificate representing Securities in
the place of any certificate theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Company may require the owner of the lost,
stolen or destroyed certificate, or such owner's legal representative, to give
the Company a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate or uncertificated
Securities.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Seal. The Company may have a company seal which shall
have the name of the Company inscribed thereon and shall be in such form as may
be approved from time to time by the Board of Directors. The Company seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 6.2. Waiver of Notice of Meetings of Securityholders,
Directors and Committees. Whenever notice is required to be given by law or
under any provision of the Agreement or these By-laws, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Securityholders, Directors or
a committee of Directors need be specified in any written waiver of notice
unless so required by the Agreement or these By-laws.
Section 6.3. Indemnification of Directors, Officers and Employees.
The Company shall indemnify to the full extent permitted under the Delaware Act
and other
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applicable law any person made or threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person or such person's testator or intestate is or
was a Director, Officer or employee of the Company or serves or served at the
request of the Company any other enterprise as a Director, director, officer or
employee except for such Director's or Officer's gross negligence or willful
misconduct. Expenses, including reasonable attorneys' fees, incurred by any such
person in defending any such action, suit or proceeding shall be paid or
reimbursed by the Company promptly upon receipt by it of an undertaking of such
person to repay such expenses if it shall ultimately be determined that such
person is not entitled to be indemnified by the Company. The rights provided to
any person by this By-Law shall be enforceable against the Company by such
person who shall be presumed to have relied upon it in serving or continuing to
serve as a Director, Officer or employee as provided above. No amendment of this
By-Law shall impair the rights of any person arising at any time with respect to
events occurring prior to such amendment. For purposes of this By-Law, the term
"Company" shall include any predecessor of the Company and any constituent
company (including any constituent of a constituent) absorbed by the Company in
a consolidation or merger; the term "other enterprise" shall include any limited
liability company, corporation, partnership, joint venture, trust or employee
benefit plan; service "at the request of the Company" shall include service as a
Director, Officer or employee of the Company which imposes duties on, or
involves services by, such Director, Officer or employee with respect to an
employee benefit plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan shall be deemed to
be indemnifiable expenses; and action by a person with respect to an employee
benefit plan which such person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed to be action not
opposed to the best interests of the Company. The rights conferred on any Person
by this Section 6.3 shall not be exclusive of any other rights which such Person
may have or hereafter acquire under any statute, provision of these By-Laws, the
Agreement, any other agreement, vote of Securityholders or disinterested
Directors or otherwise. The Company's obligation, if any, to indemnify any
Person who was or is serving at its request as a director, officer, employee or
agent of any other enterprise shall be reduced by any amount such Person may
collect as indemnification from such other enterprise. Any repeal or
modification of the foregoing provisions of this Section 6.4 shall not adversely
affect any right of protection hereunder of any Person in respect of any act or
omission occurring prior to the time of such repeal or modification.
Section 6.4. Interested Directors; Quorum. No contract or
transaction between the Company and one or more of its Directors or Officers, or
between the Company and any other limited liability company, corporation,
partnership, association or other organization in which one or more of its
Directors or Officers are Directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the Director
or Officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or her or their votes are counted for such purpose, if: (1)
the material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of disinterested Directors, even though the
disinterested Directors be less than a quorum; or (2) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the Securityholders entitled to vote thereon, and the
contract or
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transaction is specifically approved in good faith by vote of the
Securityholders; or (3) the contract or transaction is fair as to the Company as
of the time it is authorized, approved or ratified, by the Board, a committee
thereof or the Securityholders. Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 6.5. Form of Records. Any records maintained by the Company
in the regular course of its business, including its Securities ledger, books of
account and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape or disk, photographs, microphotographs or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Company shall so convert any records
so kept upon the request of any person entitled to inspect the same.
Section 6.6. Amendment of By-laws. These By-laws may be amended or
repealed, and new by-laws adopted, by the Board of Directors in accordance with
the Agreement.
Section 6.7. Governing Law. These By-laws shall be governed by and
construed in accordance with the laws of the State of Delaware (without regard
to principles of conflict of laws).
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Annex D
to the Amended and Restated
Limited Liability Company Agreement
[Form of Subordinated Note of UBS AG]
[Filed as Exhibit 4.24 herewith]
D-1
Annex E
to the Amended and Restated
Limited Liability Company Agreement
LIST OF INITIAL DIRECTORS AND OFFICERS
Name Position and Offices Held
- ---- -------------------------
Managing Director and President
Director and Treasurer
Director and Secretary
E-1
Annex F
to the Amended and Restated
Limited Liability Company Agreement
INVESTMENT POLICIES
The Company will maintain its assets in a manner that will not require the
Company to be registered as an investment company under the 1940 Act. The
Company will not (i) invest in the securities of other issuers for the purpose
of exercising control over such issuers, (ii) underwrite securities of other
issuers, (iii) actively trade in investments, (iv) offer securities in exchange
for property or (v) make loans to third parties, including, without limitation,
officers, directors or other affiliates of the Company.
The Company may not hold or invest in any securities other than the
Subordinated Notes issued by the Cayman Islands branch of the Bank with an
aggregate principal amount of $o or other securities issued by the Bank acting
through a branch, agency or other office located outside of the United States or
by a non-U.S. branch of a non-U.S. subsidiary of the Bank (together, "Eligible
Investments"). With respect to any Eligible Investments other than the
Subordinated Notes purchased by the Company, the terms thereof must be
established in good faith to reflect, to the extent deemed advisable by the
Bank, arm's-length market terms at the time of purchase and the purchase by the
Company of Eligible Investments must be approved by the affirmative vote of a
majority of the entire Board of Directors.
Upon receipt at of the principal amount of the Subordinated Notes, the
Company will either invest the principal amount received in other Eligible
Investments or, if the Company elects to redeem the Company Preferred Securities
at such time (subject to having received prior approval of the Swiss Federal
Banking Commission to do so, if then required), apply such amount to the
redemption price of the Company Preferred Securities.
Capitalized terms not defined herein have the meanings ascribed to such
terms in the Amended and Restated Limited Liability Company Agreement, dated
____ __, 200*, of UBS Preferred Funding Company LLC VIII, as the same may be
amended from time to time.
F-1
Annex G
to the Amended and Restated
Limited Liability Company Agreement
AMOUNT OF COMPANY
CERTIFICATE NUMBER * PREFERRED SECURITIES: $*
*% NONCUMULATIVE COMPANY PREFERRED SECURITIES
(liquidation preference $[1,000][25] per security)
of
UBS PREFERRED FUNDING COMPANY LLC VIII
UBS PREFERRED FUNDING COMPANY LLC VIII, a limited liability company
formed under the laws of the State of Delaware (the "Company"), hereby certifies
that UBS Preferred Funding Trust * (the "Securityholder") is the registered
owner of Company Preferred Securities representing preferred limited liability
company interests in the Company, which are designated the *% Noncumulative
Company Preferred Securities, liquidation preference $[1,000][25] per security
and aggregate liquidation preference $* (the "Company Preferred Securities").
Subject to certain obligations which may arise under the Delaware Limited
Liability Company Act (the "Delaware Act"), no additional payments will be
required pursuant to the Delaware Act for the Company Preferred Securities to
represent preferred limited liability company interests in the Company, as to
which the Securityholders of the Company who hold the Company Preferred
Securities (the "Securityholders"), in their capacities as such, have no
liability in excess of their obligations to make payments provided for in the
LLC Agreement (as defined below) and their share as provided in the LLC
Agreement of the Company's assets and undistributed profits (subject to their
obligation to repay any funds wrongfully distributed to them), and are
transferable on the books and records of the Company, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer and otherwise in accordance with the provisions of the
LLC Agreement. The powers, preferences and special rights and limitations of the
Company Preferred Securities are set forth in, and this certificate and the
Company Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Limited Liability Company Agreement of the Company dated as of ____ __, as the
same may be amended from time to time in accordance with its terms (the "LLC
Agreement"), authorizing the issuance of the Company Preferred Securities and
determining the powers, preferences and other special rights and limitations,
regarding dividends, voting, return of capital and otherwise, and other matters
relating to the Company Preferred Securities. Capitalized terms used herein but
not defined herein shall have the meaning given them in the LLC Agreement. The
Securityholder is entitled to the benefits of the Bank Subordinated Guarantee of
UBS AG, a bank organized under the laws of Switzerland, dated as of ____ __,
200* (the "Bank Subordinated Guarantee") to the extent provided therein. The
Company will furnish a copy of the LLC Agreement and the Bank Subordinated
Guarantee to the Securityholder without charge upon written request to the
Company at its principal place of business.
G-1
All dividends and redemption price and other payments and all other
monetary rights and obligations in respect of the Company Preferred Securities
shall be performed in U.S. dollars.
The Securityholder, by accepting this certificate, is deemed to have
agreed to be bound by the provisions of the LLC Agreement. Upon receipt of this
certificate, the Securityholder is admitted to the Company as a Preferred
Securityholder, is bound by the LLC Agreement and is entitled to the benefits
thereunder.
This certificate shall be governed by and construed in accordance
with the laws of the State of Delaware (without regard to principles of conflict
of laws).
G-2
IN WITNESS WHEREOF, this certificate has been executed on behalf of
the Company by a duly authorized officer as of this ___ day of ____ 200*.
UBS PREFERRED FUNDING COMPANY LLC VIII
By: ______________________________________
Name:
Title:
G-3
Annex H
to the Amended Restated
Limited Liability Company Agreement
FORM OF NO DIVIDEND INSTRUCTION
(pursuant to Section 9.3 of the amended and restated limited liability company
agreement of UBS Preferred Funding Company LLC VIII)
[Date]
UBS Preferred Funding Company LLC VIII
[________________]
[________________]
[________________]
Attention: [________________]
[________________]
[________________]
[________________]
Attention: [________________]
Re: Dividends on Company Preferred Securities
Reference is made to the Amended and Restated Limited Liability
Company Agreement, dated as of ____ __, 200* (as amended from time to time the
"Agreement"), of UBS Preferred Funding Company LLC VIII (the "Company"). Terms
used herein and defined in the Agreement are used herein as so defined.
Pursuant to Section 9.3 of the Agreement, the undersigned, as the
Common Securityholder[s], hereby instruct[s] the Company to pay [ ]% of the
otherwise scheduled dividends on the Company Preferred Securities on the
dividend payment date for such series immediately following the date of receipt
of this letter. All amounts otherwise payable on such series of Company
Preferred Securities shall be paid on the Company Common Securities in
accordance with the Agreement.
[Common Securityholder(s)]
__________________________________
Name:
Title:
H-1
Annex I
to Amended and Restated
Limited Liability Agreement
FORM OF NOMINEE LETTER
[Date]
Re: *% Noncumulative Company Preferred Securities
To the nominee holder of the above-referenced securities,
c/o [Common Depositary]
Ladies and Gentlemen:
With respect to any o% Noncumulative Company Preferred Securities of
UBS Preferred Funding Company LLC VIII (the "Company") that you may hold as a
nominee on behalf of another person or for your own account, you are hereby
authorized to omit from any statement that you may be required to furnish to the
Company under paragraph (a)(1)(i) or paragraph (a)(3)(i) of United States
Treasury Regulations Section 1.6031(c)-1T (the "Regulation") that part of the
information described in paragraphs (a)(1)(ii)(E) and (a)(3)(ii)(D) of the
Regulation regarding the method of acquisition and acquisition cost and that
part of the information described in paragraphs (a)(1)(ii)(F) and (a)(3)(ii)(E)
of the Regulation regarding the net proceeds from the transfer.
This authorization shall continue in effect for each taxable year of
the Company unless modified or revoked in writing by the Company more than 60
days before the beginning of such taxable year.
Sincerely yours,
I-1