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EXHIBIT 10.1
EXECUTION COPY
10,000,000
5-1/4% CONVERTIBLE QUARTERLY INCOME PREFERRED SECURITIES
(CONVERTIBLE QUIPS(SM)* Securitization)
(Liquidation Preference $50 per preferred security)
December 12, 1997
REGISTRATION RIGHTS AGREEMENT
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
c/o Goldman Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Financial Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), and ▇▇▇▇▇▇ Co., a Delaware
corporation (the "Company"), as depositor of the Trust and as guarantor, propose
to issue and sell to the Purchasers (as defined herein), upon the terms set
forth in the Purchase Agreement (as defined herein) an aggregate of 8,600,000
and, at the election of the Purchasers, up to an additional 1,400,000 of 5-1/4%
Convertible Quarterly Income Preferred Securities (liquidation preference $50
per preferred security) (the "Preferred Securities") of the Trust. The Preferred
Securities are guaranteed on a subordinated basis by the Company as to the
payment of distributions, and as to payments on liquidation or redemption, to
the extent set forth in a guarantee agreement (the "Guarantee") between the
Company and The Chase Manhattan Bank, as trustee, and may be converted or
exchanged under certain circumstances into the 5-1/4% Convertible Subordinated
Debentures due December 1, 2027 of the Company (the "Debentures") held by the
Trust and then into common stock, $1.00 par value per share (together with the
associated preferred stock purchase rights provided under the Rights Agreement
(as defined herein), "Common Stock"), of the Company. The Preferred Securities,
the Debentures, the Guarantee and, the Common
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*QUIPS is a servicemark of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
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Stock issuable upon conversion of the Preferred Securities and/or the Debentures
are referred to collectively as the "Securities." As an inducement to the
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Trust and the
Company each agree with the Purchasers for the benefit of Holders (as defined
herein) from time to time of the Registrable Securities (as defined herein) as
follows:
1. Definitions. (a) Capitalized terms used herein without
definition shall have the meanings ascribed thereto in the Purchase Agreement.
As used in this Registration Rights Agreement, the following defined terms shall
have the following meanings:
"Act" or "Securities Act" means the Securities Act of 1933, or
any successor thereto, as the same may be amended from time to time.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"DTC" means the Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in
Section 2(b)(i) hereof.
"Effective Time" means the date on which the Commission declares
the Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in
Section 3(a)(3) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as the same may be amended from time to time.
"Holder" means when used with respect to any Security, the holder
of such Security. For all purposes of this Agreement, the Company shall be
entitled to treat the record owner of a Security as the beneficial owner of such
Security unless the Company has been given written notice of the existence and
identity of a different beneficial owner.
"Indenture" means the Convertible Subordinated Indenture, dated
as of December 12, 1997, between the Company and The Chase Manhattan Bank, as
indenture trustee, as amended and supplemented from time to time in accordance
with its terms.
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"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of
Securities Dealers, Inc., as amended.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
"Person" means a corporation, association, partnership,
organization, business, individual, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" means the prospectus (including, without limitation,
any preliminary prospectus, any final prospectus and any prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act)
included in the Shelf Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by the Shelf Registration Statement and by
all other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Purchase Agreement" means the purchase agreement dated December
8, 1997 among the Purchasers, the Trust and the Company.
"Purchasers" means the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" means all or any portion of the
Securities issued from time to time; provided, however, that a security ceases
to be a Registrable Security when it is no longer a Restricted Security.
"Restricted Security means any Security except any such Security
which (i) has been effectively registered under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), (iii) has been sold in
compliance with Regulation S under the Securities Act (or any successor thereto)
and does not constitute the unsold allotment of a distributor within the meaning
of Regulation S under the Securities Act, or (iv) has otherwise been transferred
and a new Security not subject to transfer restrictions under the Securities Act
has been delivered by or on behalf of the Company in accordance with the terms
of the Trust Agreement or the Indenture, as the case may be.
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"Rights Agreement" means the Rights Agreement dated as of October
20, 1988 between the Company and First Chicago Trust Company of New York
(formerly known as ▇▇▇▇▇▇ Shareholders Service Trust Company), and any successor
or replacements thereof.
"Rules and Regulations" means the published rules and regulations
of the Commission promulgated under the Securities Act or the Exchange Act, as
in effect at any relevant time.
"Securities" means the Preferred Securities, the Debentures, the
Guarantee and the Common Stock issuable upon conversion or exchange of the
Preferred Securities and/or the Debentures.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Statement" means a "shelf" registration
statement filed under the Securities Act providing for the registration of, and
the sale on a continuous or delayed basis by the Holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission, filed by the Company and the
Trust pursuant to the provisions of Section 2 hereof, including the Prospectus
contained therein, any amendments and supplements to such registration
statement, including posteffective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of December 12, 1997, among the Company, as Depositor, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee, and the Administrative Trustees named therein, relating, among other
things, to the Preferred Securities, as amended and supplemented from time to
time in accordance with its terms.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, as the same shall be amended.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of Registrable Securities or to a
percentage of Registrable Securities, the Preferred Securities and the
Debentures issuable upon exchange of the Preferred Securities will be treated as
the same class of Securities and Common Stock shall be treated as representing
the liquidation preference of Preferred Securities or the principal amount of
Debentures which was surrendered for conversion in order to receive such number
of shares of Common Stock.
2. Shelf Registration. (a) The Company and the Trust shall,
within 90 calendar days following the first Time of Delivery (as defined in the
Purchase Agreement), file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable
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Securities and, thereafter, shall use their best efforts to cause such Shelf
Registration Statement to be declared effective under the Act as promptly as
practicable and in no event later than 180 calendar days after the Time of
Delivery; provided however, that no Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
Prospectus forming a part thereof for resales of Registrable Securities unless
such Holder is an Electing Holder.
(b) The Company and the Trust shall each use its best efforts:
(i) To keep the Shelf Registration Statement continuously
effective (subject to any Suspension Period (as defined below)) in order
to permit the Prospectus forming a part thereof to be usable by Electing
Holders for resales of Registrable Securities for a period of two years
after the latest date of original issuance of Preferred Securities, or
such shorter period that will terminate upon the earliest of the
following: (A) when all the Preferred Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement; (B) when all Debentures issued to Holders in respect of
Preferred Securities that had not been sold pursuant to the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement; (C) when all shares of Common Stock issued upon conversion of
any such Preferred Securities or any such Debentures that have not been
sold pursuant to the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement; and (D) when, in the
written opinion of counsel to the Trust and the Company, all outstanding
Registrable Securities held by persons which are not Affiliates of the
Trust or the Company may be resold immediately without registration or
restriction, whether under the Act pursuant to Rule 144(k) or any
successor provision thereto or otherwise (in any such case, such period
being called the "Effectiveness Period").
(ii) After the Effective Time of the Shelf Registration Statement
and prior to the end of the Effectiveness Period, promptly upon the
request of any Holder that is not then an Electing Holder identified as
a selling securityholder in the Prospectus at the Effective Time, to
take any action reasonably necessary to enable such Holder to use the
Prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such
Holder as a selling securityholder in the Shelf Registration Statement;
provided, however, that nothing in this subparagraph shall relieve such
Holder of the obligation to return a completed and signed Notice and
Questionnaire to the Trust in accordance with Section 3(a)(2) hereof and
to provide to the Trust and the Company, in writing, any information
with respect to such Holder or the Registrable Securities held by such
Holder as is, in the reasonable opinion of counsel to the Trust or the
Company, required under applicable law to enable such Holder to use such
Prospectus for resales of such Registrable Securities; and
(iii) If at any time prior to the end of the Effectiveness
Period, the Preferred Securities are convertible into securities other
than Common Stock, the Company and the Trust shall, or shall cause any
successor under the Trust Agreement to, cause such securities to be
included in the Shelf Registration Statement no later than the date on
which the Preferred Securities may first be converted into such
securities.
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(c) If (i) on or prior to the date 90 days after the Time of Delivery a
Shelf Registration Statement has not been filed with the Commission or (ii) on
or prior to the date 180 days after the Time of Delivery such Shelf Registration
Statement has not been declared effective (each such event, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on the
Debentures, and, accordingly, additional distributions will accrue on the
Preferred Securities, from and including the day following such Registration
Default until the earlier of such date as the Shelf Registration Statement is
filed or declared effective, as the case may be, or the end of the Effectiveness
Period. Liquidated Damages will be paid quarterly in arrears (subject to the
Company's right to defer the payment of Liquidated Damages during any Extension
Period (as defined in the Indenture)), with the first quarterly payment due on
the first interest or distribution payment date, as applicable, following the
date on which such Liquidated Damages begin to accrue, and will accrue at a rate
per annum equal to an additional one-quarter of one percent (0.25%) of the
principal amount or liquidation preference, as applicable, to and including the
90th day following such Registration Default and one-half of one percent (0.50%)
thereof from and after the 91st day following such Registration Default. In the
event that the Shelf Registration Statement ceases to be effective during the
Effectiveness Period for more than 90 days, whether or not consecutive, during
any 12-month period, then the interest rate borne by the Debentures and the
distribution rate borne by the Preferred Securities will each increase by an
additional one-half of one percent (0.50%) per annum from the 91st day of the
applicable 12-month period such Shelf Registration Statement ceases to be
effective until such time as the earlier to occur of the Shelf Registration
Statement again becoming effective and the end of the Effectiveness Period.
(d) The Company and the Trust shall each be deemed not to have used its
best efforts to keep the Shelf Registration Statement effective during the
Effectiveness Period if either the Trust or the Company voluntarily takes any
action that would result in Electing Holders not being able to offer and sell
any of their Registrable Securities during such period, unless (i) such action
is required by applicable law, (ii) upon the occurrence of any event
contemplated by paragraph 3(d)(2)(iii) below, and such action is taken by the
Trust or the Company in good faith and for valid business reasons or (iii) the
continued effectiveness of the Shelf Registration Statement would require the
Trust to disclose a material financing, acquisition or other corporate
development, and the proper officers of the Company shall have determined in
good faith that such disclosure is not in the best interest of the Company and
its stockholders and, in the case of clause (ii) above, the Company and the
Trust thereafter promptly comply with the requirements of paragraph 3(j) below.
Any such period during which the Company and the Trust are permitted to suspend
the effectiveness of the Shelf Registration Statement is referred to herein as
the "Suspension Period."
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a) (1) The Company shall not be required to take any action to
name such Holder as a selling securityholder in the Shelf
Registration Statement or to enable such Holder to use the
Prospectus forming a part thereof for resales of Registrable
Securities until such Holder has returned a completed and signed
Notice and Questionnaire to the Company and the Trust and
provided to the Trust and the Company such information with
respect to such Holder or the Registrable Securities held by such
Holder as is, in
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the reasonable opinion of counsel to the Trust or the Company,
required to enable such Holder to use the Prospectus for resales of
Registrable Securities.
(2) Not less than 40 calendar days prior to the Effective Time of
the Shelf Registration Statement, the Company or the Trust shall mail
the Notice and Questionnaire to each Holder. No Holder shall be entitled
to be named as a selling securityholder in the Shelf Registration
Statement as of the Effective Time, and no Holder shall be entitled to
use the Prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such Holder has returned a completed and
signed Notice and Questionnaire to the Company and the Trust and
provided to the Trust and the Company such information with respect to
such Holder of the Registrable Securities held by such Holder as is, in
the reasonable opinion of counsel to the Trust or the Company, required
to enable such Holder to use the Prospectus for resales of Registrable
Securities; provided, however, that only Holders who have completed and
returned the Notice and Questionnaire and any such additional
information requested of such Holder to the Company on or before the day
that is ten days prior to the Effective Time shall be entitled to be
named as a selling securityholder in the Shelf Registration Statement as
of the Effective Time.
(3) The term "Electing Holder" shall mean any Holder that has
returned a completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(a)(1) or 3(a)(2) hereof and provided to the
Trust and the Company such information with respect to such Holder or
the Registrable Securities held by such Holder as is, in the reasonable
opinion of counsel to the Trust or the Company, required to enable such
Holder to use the Prospectus for resales of Registrable Securities.
(b) The Company and the Trust shall furnish to each Electing
Holder, prior to the Effective Time, a copy of the Shelf Registration
Statement initially filed with the Commission, and shall furnish to such
Holders, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein, and shall
consider in good faith for inclusion in each such document, at the
Effective Time such comments as such Holders or their counsel reasonably
may propose.
(c) The Company and the Trust shall promptly take such action as
may be necessary so that (i) each of the Shelf Registration Statement
and any amendment thereto and the Prospectus forming part thereof and
any amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all material
respects with the Securities Act and the rules and regulations
thereunder, (ii) each of the Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) each of the Prospectus forming part of the Shelf
Registration Statement, and any amendment or supplement to such
Prospectus, does not at any time during the Effectiveness Period include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(d) (1) The Company shall promptly advise the Purchasers and, in
the case of clause (i), the Electing Holders and, if requested by the
Purchasers or any such Electing Holder, confirm such advice in writing:
(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company shall promptly advise each Electing Holder of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for such purpose;
(ii) the receipt by the Company or the Trust of any
notification with respect to the suspension of the qualification
of the securities included in the Shelf Registration Statement
for sale in any jurisdiction or the initiation of any proceeding
for such purpose; and
(iii) the happening of any event that requires the making
of any changes in the Shelf Registration Statement or the
Prospectus included therein so that, as of such date, such Shelf
Registration Statement and Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been
made).
(e) The Company and the Trust shall each use its best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any
order suspending the effectiveness of the Shelf Registration Statement
at the earliest possible time.
(f) The Company and the Trust shall furnish to each Electing
Holder, without charge, at least one copy of the Shelf Registration
Statement and all post-effective amendments thereto, including financial
statements and schedules, and, if such Holder so requests in writing,
all reports, other documents and exhibits that are filed with or
incorporated by reference in the Shelf Registration Statement.
(g) The Company and the Trust shall, during the Effectiveness
Period, deliver to each Electing Holder, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) included in
the Shelf Registration Statement and any amendment or supplement thereto
as such Electing Holder may reasonably
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request; and the Company and the Trust each consents (except during the
continuance of any event described in Section 3(d)(2)(iii) above or
during any Suspension Period) to the use of the Prospectus and any
amendment or supplement thereto by each of the Electing Holders in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus and any amendment or supplement thereto during
the Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to
the Shelf Registration Statement, the Company and the Trust shall (1)
register or qualify or cooperate with the Electing Holders and their
respective counsel in connection with the registration or qualification
of such Registrable Securities for offer and sale under the securities
or "blue sky" laws of such jurisdictions within the United States as any
Electing Holder may reasonably request, (2) keep such registrations or
qualifications in effect (subject to any Suspension Period) and comply
with such laws so as to permit the continuance of offers and sales in
such jurisdictions for so long as may be necessary to enable any
Electing Holder or underwriter, if any, to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement, and
(3) take any and all other actions necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities;
provided, however, that in no event shall the Company or the Trust be
obligated to (i) qualify generally to do business or as a foreign
corporation or as a dealer in securities in any jurisdiction where each
would not otherwise be required to so qualify but for this Section 3(h),
(ii) file any general consent to service of process in any jurisdiction
where it is not as of the date hereof so subject or (iii) subject itself
to taxation in any jurisdiction where it is not otherwise so subject.
(i) Unless any Registrable Securities shall be in book-entry only
form, the Company and the Trust shall cooperate with the Electing
Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to
the Shelf Registration Statement free of any restrictive legends and in
such permitted denominations and registered in such names as Electing
Holders may request in connection with the sale of Registrable
Securities pursuant to the Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraph
3(d)(2)(iii) above, the Company and the Trust shall promptly prepare a
post-effective amendment or supplement to the Shelf Registration
Statement or the Prospectus, or any document incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to purchasers of the Registrable Securities included therein,
the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except, in each case, for an untrue statement of a
material fact or omission of a material fact made in reliance on and in
conformity with written information furnished to the Trust or the
Company by or on behalf of any Electing Holders); provided, however, if
the proper officers of the Company determine in good faith that
disclosure in the Shelf Registration Statement of a material financing,
acquisition or other corporate transaction would not be in the best
interests of the Company and its stockholders, the Company and the Trust
shall not be required to
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prepare and file such amendment, supplement or document for such period
as such officers shall have determined in good faith is in the best
interests of the Company. Upon receipt of written notice from the
Company or the Trust of the occurrence of any event contemplated by
paragraph 3(d)(2)(iii) above or of any Suspension Period, each Holder
shall forthwith discontinue disposition of Registrable Securities until
such Holder has received copies of the supplemental or amended
Prospectus required by this paragraph 3(j), or until such Holder is
advised by the Company or the Trust that the use of the Prospectus may
be resumed and, if so directed by the Company, such Holder shall deliver
to the Company (at the Company's expense) all copies then in such
Holder's possession of the Prospectus covering such Registrable
Securities current at the time of such notice.
(k) Not later than the effective date of any Shelf Registration
Statement hereunder, the Company and the Trust shall each provide a
CUSIP number for the Preferred Securities registered under such Shelf
Registration Statement; in the event of and at the time of any
distribution of the Debentures to Holders, the Company and the Trust
shall provide a CUSIP number for the Debentures and provide the
applicable trustee with certificates for such Registrable Securities, in
a form eligible for deposit with DTC.
(l) The Company and the Trust shall each use its best efforts to
comply with all applicable Rules and Regulations, and to make generally
available to its securityholders as soon as practicable, but in any
event not later than 18 months after (i) the effective date (as defined
in Rule 158(c) under the Securities Act) of the Shelf Registration
Statement, (ii) the effective date of each post effective amendment to
the Shelf Registration Statement, and (iii) the date of each filing by
the Company with the Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Shelf Registration Statement, an
earnings statement of the Company and its subsidiaries complying with
Section 11 (a) of the Securities Act and the rules and regulations of
the Commission thereunder (including, at the option of the Company, Rule
158).
(m) The Company and the Trust shall each use its best efforts to
cause the Indenture, the Trust Agreement and the Guarantee to be
qualified under the Trust Indenture Act in a timely manner.
(n) In the event of an underwritten offering conducted pursuant
to Section 6 hereof, the Company and the Trust shall, if requested,
promptly include or incorporate in a Prospectus supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Managing Underwriters reasonably agree should be
included therein and to which the Company does not reasonably object and
shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is notified of
the matters to be included or incorporated in such Prospectus supplement
or post-effective amendment.
(o) The Company and the Trust shall enter into such customary
agreements (including an underwriting agreement in customary form in the
event of an underwritten
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offering conducted pursuant to Section 6 hereof) and take all other
appropriate actions in order to expedite and facilitate the registration
and disposition of the Registrable Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same
to contain indemnification provisions and procedures reasonably similar
to those set forth in section 5 hereof with respect to all parties to be
indemnified pursuant to Section 5 hereof.
(p) The Company and the Trust shall:
(i) (A) make available for inspection by Electing Holders, any
underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and any attorney, accountant or other agent
retained by such holders or any such underwriter all relevant financial
and other records, pertinent corporate or other documents and properties
of the Company, its subsidiaries and the Trust, and (B) cause the
officers, directors, employees, trustees and agents of the Company and
the Trust to supply all information requested by such Holders or any
such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as is customary for similar
due diligence examinations; provided, however, that each Electing Holder
and its representatives and agents shall execute an agreement (in form
reasonably acceptable to the Company) providing that all records,
information and documents that are designated in writing by the Company
and the Trust, in good faith, as confidential shall not be used for any
other purpose and shall be kept confidential by such Holders and any
such underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or
such records, information or documents become available to the public
generally or through a third party without an accompanying obligation of
confidentiality; and provided further that, if the foregoing inspection
and information gathering would, in the Company's reasonable judgment,
disrupt the Company's conduct of its business, such inspection and
information gathering shall be coordinated on behalf of the Electing
Holders and the other parties entitled thereto by one counsel designated
by and on behalf of Electing Holders and other parties (the fees and
expenses of such counsel to be borne by such Electing Holders except to
the extent set forth in Section 4);
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and warranties
to the Holders participating in such underwritten offering and to the
Managing Underwriters, in form, substance and scope as are customarily
made by the Company and the Trust to underwriters in primary
underwritten offerings of equity and convertible preferred and debt
securities and covering matters including, but not limited to, those set
forth in the Purchase Agreement;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel (which counsel
may be an employee of the Company) to the Company and the Trust (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters) addressed to each Holder
participating in such underwritten offering and the underwriters,
covering such matters as are customarily covered in opinions requested
in
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underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters (it being agreed that the
matters to be covered by such opinions shall include, without
limitation, as of the date of the opinion and as of the Effective Time
of the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, a customary opinion on the
absence from the Shelf Registration Statement and the Prospectus,
including the documents incorporated by reference therein, of an untrue
statement of a material fact or the omission of a material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and updates
thereof from the independent public accountants of the Company and the
Trust, addressed to each Holder participating in such underwritten
offering (if such Holder has provided such letter, representations or
documentation, if any, required for such "cold comfort" letter to be so
addressed) and the underwriters, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings;
(v) deliver such documents and certificates as may be reasonably
requested by any Holders participating in such underwritten offering and
the Managing Underwriters, if any, including, without limitation,
certificates to evidence compliance with Section 3(j) hereof and with
any conditions contained in the underwriting agreement or other
agreements entered into by the Company and the Trust.
(q) The Company and the Trust will each use its best efforts to cause
the Common Stock issuable upon conversion of the Preferred Securities to be
listed for quotation on the New York Stock Exchange and the Chicago Stock
Exchange or other stock exchange or trading system on which the Common Stock
primarily trades on or prior to the Effective Time of the Shelf Registration
Statement hereunder.
(r) The Company and the Trust shall each use reasonable best efforts to
take all other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
(s) Upon receipt of written notice from the Company that a Suspension
Period is in effect, each Holder shall forthwith discontinue disposition of
Registrable Securities until such Holder has received copies of the supplemental
or amended Prospectus required by Section 3(j) hereof, or until such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and, if so directed by the Company, such Holder shall deliver to the Company (at
the Company's expense) all copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
4. Registration Expenses. The Company and the Trust shall each bear all
fees and expenses customarily borne by issuers in a nonunderwritten secondary
offering by selling securityholders or in an underwritten offering, as the case
may be, incurred in connection with the performance of its obligations under
Sections 2, 3 and 6 hereof. In addition, in the event of
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an underwritten offering of Registrable Securities conducted pursuant to Section
6 hereof, or if in any other event the Company requires that inspection and
information gathering be coordinated by counsel for the Electing Holders as
provided in Section 3(p)(i) hereof, the Company shall pay the fees and expenses
of a single counsel selected by the Electing Holders of not less than 25% of the
Registrable Securities to be included in such underwritten offering (or, in any
such other event, included in the Shelf Registration Statement) to represent
them.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Electing Holders and any underwriters, selling agents or other
securities professionals contained in Section 5(b) hereof, the Company and the
Trust jointly and severally shall, and each hereby agrees to, indemnify and hold
harmless each Electing Holder and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company and the Trust hereby agree to reimburse such
Indemnified Person for any reasonable legal or other out-of-pocket expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company or the Trust shall not be liable to any such Indemnified Person in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company or the Trust by such Indemnified
Person expressly for use therein.
The foregoing notwithstanding, the Trust and the Company shall not be
liable to the extent that such losses, claims, damages or liabilities arise out
of or are based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Prospectus that is a preliminary prospectus if
(i) such Indemnified Person failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale of Registrable
Securities giving rise to such losses, claims, damages or liabilities and (ii)
the Prospectus would have corrected such untrue statement or omission.
In addition, the Trust and the Company shall not be liable to the extent
that any such losses, claims, damages or liabilities arise out of or are based
upon an untrue statement or
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alleged untrue statement or omission or alleged omission in a Prospectus (x) if
such untrue statement or omission or alleged untrue statement or omission is
corrected in an amendment or supplement to such Prospectus and (y) having
previously been furnished by or on behalf of the Trust or the Company with
copies of the Prospectus as amended or supplemented, such Indemnified Person
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale to the person who purchased a Registrable
Security from such Indemnified Person and who is asserting such losses, claims,
damages or liabilities.
(b) Indemnification by the Holders and any Agents and Underwriters. Each
Electing Holder agrees, as a consequence of the inclusion of any of such
Holder's Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company and
the Trust, its directors, trustees, agents and officers who sign any Shelf
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (collectively referred to as the "Indemnified Party"), against any
losses, claims, damages or liabilities to which the Company or such other
persons may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Shelf Registration Statement or Prospectus,
or any amendment or supplement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company or the Trust by
such Holder, underwriter, selling agent or other securities professional
expressly for use therein, and (ii) reimburse the Company and the Trust for any
reasonable legal or other out-of-pocket expenses reasonably incurred by the
Company and the Trust in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. If any action or proceeding (including any
governmental investigation or inquiry) shall be brought or asserted against an
Indemnified Person under subsection (a) or an Indemnified Party under subsection
(b) (collectively referred to as the "Indemnified Holder") in respect of which
indemnity may be sought, such Indemnified Holder shall promptly notify the
person against whom such indemnity may be sought (an "Indemnifying Party") in
writing (provided that the failure to give such notice shall not relieve the
Indemnifying Party of its obligations pursuant to this Agreement unless and only
to the extent that such omission results in the loss or compromise of any
material rights or defenses by the Indemnifying Party, as determined by a court
of competent jurisdiction by final judgment), and the Indemnifying Party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses in
connection therewith; but the omission so to notify the Indemnifying Party shall
not relieve it from any liability which it may have to any Indemnified Holder
otherwise than under this Section 5. Such Indemnified Holder shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such separate counsel shall be the
expense of such Indemnified Holder unless (i) the Indemnifying Party has agreed
to
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pay such fees and expenses, (ii) the Indemnifying Party shall have failed to
promptly assume the defense of such action or proceeding or has failed to employ
counsel reasonably satisfactory to such Indemnified Holder in any such action or
proceeding or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Holder and the
Indemnifying Party, and such Indemnified Holder shall have been advised by
counsel that there may be one or more legal defenses available to such
Indemnified Holder that are different from or additional to those available to
the Indemnifying Party or that a conflict may exist between the Indemnified
Holder and the Indemnifying Party. If such Indemnified Holder notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party as permitted by the provisions of the
preceding sentence, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Holder.
The foregoing notwithstanding, the Indemnifying Party shall not be liable for
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) at any time for such Indemnified Holder and any other
Indemnified Holders (which firm shall be designated in writing by such
Indemnified Holders) in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances. The
Indemnifying Party shall not be liable for any settlement of any such action or
proceeding effected without the Indemnifying Party's prior written consent, and
the Indemnifying Party agrees to indemnify and hold harmless any Indemnified
Holder from and against any loss, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Indemnifying
Party. No Indemnifying Party shall, without the written consent of the
Indemnified Holder (which consent shall not be unreasonably withheld), effect
the settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Holder is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment includes an unconditional release
of the Indemnified Holder from all liability arising out of such action or
claim.
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to an Indemnified Holder under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each Indemnifying Party shall contribute to
the amount paid or payable by such Indemnified Holder as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and the Indemnified Holder in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party and Indemnified Holder shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such Indemnifying Party or by
such Indemnified Holder, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation (even if
the Electing Holders or any underwriters, selling agents or other securities
professionals or all of them were treated as one entity for such purpose) or by
any other method of allocation which does not
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take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. The obligations of the Electing Holders and any
underwriters, selling agents or other securities professionals in this Section
5(d) to contribute shall be several in proportion to the percentage of principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be liable to any person under this Section 5 for
any amounts in excess of the dollar amount of the proceeds to be received by
such holder from the sale of such holder's Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant to
any Shelf Registration Statement under which such Registrable Securities are to
be registered under the Securities Act and (ii) underwriter, selling agent or
other securities professional be liable to any person hereunder for any amounts
in excess of the discount, commission or other compensation payable to such
underwriter, selling agent or other securities professional with respect to the
Registrable Securities underwritten by it and distributed to the public.
(f) The obligations of the Company and the Trust under this Section 5
shall be in addition to any liability which the Company and the Trust may
otherwise have to any Indemnified Person and the obligations of any Indemnified
Person under this Section 5 shall be in addition to any liability which such
Indemnified Person may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company, each Administrative
Trustee of the Trust and to each person, if any, who controls the Trust or the
Company within the meaning of the Act. The remedies provided in this Section 5
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to an indemnified party at law or in equity.
6. Underwritten Offering. Any Electing Holder of Registrable Securities
who desires to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (i) the Holders of at least a majority in
aggregate principal amount of the outstanding Registrable Securities shall
request such an offering and (ii) at least such aggregate principal amount of
such Registrable Securities shall be included in such offering. Upon receipt of
such a request, the Company and the Trust shall provide all Holders of
Registrable Securities written notice of the request, which notice shall inform
such Holders that they have the opportunity to participate in the offering. In
any such underwritten offering, the investment banker or bankers and manager or
managers that will administer the offering will be selected by, and the
underwriting arrangements with respect thereto (including, subject to clause
(ii) above, the size of the offering) will be approved by the Holders of a
majority of the Registrable Securities to be included in such offering;
provided, however, that such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and the Trust. No
Holder may participate in any underwritten offering contemplated
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hereby unless (a) such Holder agrees to sell such Holder's Registrable
Securities to be included in the underwritten offering in accordance with any
approved underwriting arrangements, (b) such Holder completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
approved underwriting arrangements, and (c) if such Holder is not then an
Electing Holder, such Holder returns a completed and signed Notice and
Questionnaire to the Company and the Trust in accordance with Section 3(a)(2)
hereof (but in no event later than 10 days prior to commencement of the
underwritten offering) and provides to the Trust and the Company, in writing,
any information with respect to such Holder or the Registrable Securities held
by such Holder as is, in the reasonable opinion of counsel to the Trust or the
Company, required under applicable law to enable such Holder to use such
Prospectus for resales of such Registrable Securities, each within a reasonable
amount of time before such underwritten offering. The Holders participating in
any underwritten offering shall be responsible for any underwriting discounts
and commissions and fees and, subject to Section 4 hereof, expenses of their own
counsel. The Company and the Trust shall pay all expenses customarily borne by
issuers, including but not limited to filing fees, the fees and disbursements of
its counsel and independent public accountants and any printing expenses
incurred in connection with such underwritten offering. Notwithstanding the
foregoing or the provisions of Section 3(n) hereof, upon receipt of a request
from the Managing Underwriter or a representative of Holders of a majority of
the Registrable Securities to be included in an underwritten offering to prepare
and file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company and the
Trust may delay the filing of any such amendment or supplement for up to 90 days
if the Board of Directors of the Company shall have determined in good faith
that the Company has a bona fide business reason for such delay.
7. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration rights
that would permit any Person that is a third party the right to piggyback on any
Shelf Registration Statement, provided that if the Managing Underwriter of any
underwritten offering conducted pursuant to Section 6 hereof notifies the
Company and the Electing Holders that the total amount of securities which the
Electing Holders and the holders of such piggyback rights intend to include in
any Shelf Registration Statement is so large as to materially threaten the
success of such offering (including the price at which such securities can be
sold), then the amount, number or kind of securities to be offered for the
account of holders of such piggyback rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number and kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registrable Securities to be included in
such Shelf Registration Statement.
(b) Amendments and Waivers. This Agreement, including this Section 7(b),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by the Company and the
Holders of a majority in aggregate principal amount of Registrable Securities
then outstanding. Each Holder of Registrable Securities outstanding at the time
of any such amendment, waiver or consent or thereafter shall be bound by any
amendment, waiver or consent effected pursuant to this
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Section 7(b), whether or not any notice, writing or marking indicating such
amendment, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at such address set forth on the record books
of the Company or the Trust, as the case may be;
(ii) if to the Purchasers, initially at the address set forth in
the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have duly given when
received.
The Purchasers or the Company and the Trust by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Parties in Interest. The parties to this Registration Rights
Agreement intend that all Holders of Registrable Securities shall be entitled to
receive the benefits of this Registration Rights Agreement and that any Electing
Holder shall be bound by the terms and provisions of this Registration Rights
Agreement by reason of such election with respect to the Registrable Securities
which are included in a Shelf Registration Statement. All the terms and
provisions of this Registration Rights Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the respective successors
and assigns of the parties hereto and any Holder from time to time of the
Registrable Securities to the aforesaid extent. In the event that any transferee
of any Holder of Registrable Securities shall acquire Registrable securities, in
any manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind, be
entitled to receive the benefits of and, if an Electing Holder, be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Registration Rights Agreement to the aforesaid extent.
(e) Counterparts. This Registration Rights Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Registration Rights Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Registration Rights Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
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(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Trust and you.
Very truly yours,
▇▇▇▇▇▇ FINANCIAL TRUST I
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Administrative Trustee
▇▇▇▇▇▇ CO.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
----------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
On behalf of each of the Purchasers
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EXHIBIT A
▇▇▇▇▇▇ CO.
▇▇▇▇▇▇ FINANCIAL TRUST I
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT -- IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: (DATE)
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in 5 1/4% Convertible Quarterly
Income Preferred Securities (liquidation preference $50 per preferred security)
of ▇▇▇▇▇▇ Financial Trust I (the "Trust") are held. The Preferred Securities are
guaranteed on a subordinated basis by ▇▇▇▇▇▇ Co. (the "Company") as to the
payment of distributions, and as to payments on liquidation or redemption, to
the extent set forth in a guarantee agreement between the Company and The Chase
Manhattan Bank, as trustee (the "Guarantee") and may be exchanged under certain
circumstances into 5 1/4% Convertible Subordinated Debentures due December 1,
2027 of the Company (the "Debentures") held by the Trust and converted into
common stock, $1.00 par value per share ("Common Stock"), of the Company. The
Preferred Securities, the Debentures, the Guarantee and the Common Stock are
referred to collectively as the "Registrable Securities."
The Company and the Trust are in the process of registering the
Registrable Securities under the Securities Act of 1933 for resale by the
beneficial owners thereof. In order to have their Registrable Securities
included in the registration statement, beneficial owners must complete and
return the enclosed Notice of Registration Statement and Selling Securityholder
Questionnaire.
It is important that beneficial owners of the Registrable Securities
receive a copy of the enclosed materials as soon as possible as their rights to
have the Registrable Securities included in the registration statement depend
upon their returning the Notice and Questionnaire by (DEADLINE FOR RESPONSE).
Please forward a copy of the enclosed documents to each beneficial owner that
holds interests in the Registrable Securities through you. If you require more
copies of the enclosed materials or have any questions pertaining to this
matter, please contact:
▇▇▇▇▇▇ Co.
----------------------
----------------------
Attn: General Counsel
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FORM OF
▇▇▇▇▇▇ CO.
▇▇▇▇▇▇ FINANCIAL TRUST I
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITY HOLDER QUESTIONNAIRE
[Date]
▇▇▇▇▇▇ Co. (the "Company") and ▇▇▇▇▇▇ Financial Trust I (the
"Trust") have filed with the United States Securities and Exchange Commission
(the "Commission") a preliminary registration statement on Form S-3 (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Trust's 5-1/4%
Convertible Quarterly Income Preferred Securities (liquidation preference $50
per preferred security (the "Preferred Securities"), the Company's 5-1/4%
Convertible Subordinated Debentures due December 1, 2027 (the "Debentures"), the
guarantee of the Company pursuant to the Guarantee Agreement between the Company
and The Chase Manhattan Bank, as trustee (the "Guarantee"), the shares of common
stock of the Company, $1.00 par value, issuable upon conversion of the Preferred
Securities and/or the Debentures (together with the associated preferred stock
purchase rights (the "Rights") provided under the Rights Agreement, the "Company
Common Stock"), and together with the Preferred Securities, the Debentures and
the Guarantee, the "Registrable Securities"), in accordance with the terms of
the Registration Rights Agreement, dated as of December 12, 1997 (the
"Registration Rights Agreement"), between the Trust, the Company and the Initial
Purchasers named therein (the "Initial Purchasers"). A copy of the Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
Each beneficial owner of Registrable Securities is entitled to
have the Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Security Holder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE (DEADLINE FOR RESPONSE). Beneficial owners of
Registrable Securities who do not complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling security holders in
the Shelf Registration Statement and related Prospectus and (ii) may not sell
their Registrable Securities pursuant thereto, unless the Company, in its
discretion, consents to include such owner's securities in the Shelf
Registration Statement.
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Certain legal consequences arise from being named as a selling
security holder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling security holder in the Shelf Registration
Statement and related Prospectus.
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ELECTION
The undersigned holder (the "Selling Security Holder") of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed below
in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Registrable Securities by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement.
The Selling Security Holder hereby undertakes, in accordance with
Section 5 of the Registration Rights Agreement, to (i) indemnify and hold
harmless the Company and the Trust, its directors, trustees, agents and officers
who sign any Shelf Registration Statement and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Company or such other persons may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such Shelf Registration Statement or prospectus which is a part thereof, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company or the Trust by
such Selling Security Holder expressly for use therein, and (ii) reimburse the
Company and the Trust for any reasonable legal or other out-of-pocket expenses
reasonably incurred by the Company and the Trust in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Selling Security Holder shall not be
liable for any claims thereunder in excess of the amount of net proceeds
received by such Selling Security Holder from the sale of Registrable Securities
pursuant to the Shelf Registration Statement. The undersigned further
undertakes, if applicable, to comply with the provisions of Sections 5(c) and
(d) of the Registration Rights Agreement that are applicable to the undersigned.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement under the Securities Act, the Selling Security Holder
will be required to deliver to the Company, the Trust and Trustee the Notice of
Transfer set forth in Appendix I attached to this Notice and Questionnaire
(completed and signed) and hereby undertakes to do so.
The Selling Security Holder hereby provides the following
information to the Company and the Trust and represents and warrants that such
information is accurate and complete:
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QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Security Holder:
-----------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) below:
-----------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
(3) Below Are Held:
-----------------------------------------------------------------
(2) Address for Notices to Selling Security Holder:
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Telephone:
------------------------------------
Fax:
------------------------------------
Contact Person:
------------------------------------
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Company Common Stock issued upon
conversion of any Securities.
(a) Principal amount or liquidation preference of Registrable
Securities (as defined in the Registration Rights Agreement)
beneficially owned:
-------------------------------------------
CUSIP No(s). of such Registrable Securities:
-------------------
Number of shares of Company Common Stock (if any) issued upon
conversion of such Registrable Securities:
-------------------
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(b) Principal amount or liquidation preference of Registrable
Securities which the undersigned wishes to be included in the
Shelf Registration Statement: __________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement: _______________
Number of shares of Company Common Stock (if any) issued upon
conversion of such Registrable Securities which are to be
included in the Shelf Registration Statement:
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Security Holder is not the beneficial or registered owner of any shares of
Common Stock or any other securities of the Company or any of its affiliates,
other than the Registrable Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Security Holder
nor any of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during the
past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Security
Holder intends to distribute the Registrable Securities listed above in Item (3)
only as follows (if at all): Such Registrable Securities may be sold from time
to time directly by the undersigned Selling Security Holder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Registerable Securities may be listed or quoted
at the time of sale, (ii) in the over-the-counter
-▇▇-
▇▇
▇▇▇▇▇▇, (▇▇▇) in transactions otherwise than on such exchanges or services or in
the over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the Selling
Security Holder may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Registrable Securities in the course of
hedging positions they assume. The Selling Security Holder may also sell
Registrable Securities short and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
Note: In no event will such method(s) of distribution take the
form of an underwritten offering of the Registrable Securities without the prior
agreement of the Company and the Trust.
By signing below, the Selling Security Holder acknowledges that
it understands its obligation to comply, and agrees that it will comply, with
the provisions of the Exchange Act and the rules and regulations thereunder.
In the event that the Selling Security Holder transfers all or
any portion of the Registrable Securities listed in Item (3) above after the
date on which such information is provided to the Company and the Trust, the
Selling Security Holder agrees to notify the transferee(s) at the time of the
transfer of its rights and obligations under this Notice and Questionnaire and
the Registration Rights Agreement.
By signing below, the Selling Security Holder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Security Holder
understands that such information will be relied upon by the Trust and the
Company in connection with the preparation of the Shelf Registration Statement
and related Prospectus.
In accordance with the Selling Security Holder's obligation under
Section 3(a) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Security Holder agrees to promptly notify the Company and the Trust of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration Rights
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
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28
(i) To the Trust:
▇▇▇▇▇▇ Financial Trust I
c/o Newell Co.
Newell Center
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: Vice President-Treasurer
(ii) With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Once this Notice and Questionnaire is executed by the Selling
Security Holder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company, the Trust and the Selling Security Holder (with respect to the
Registrable Securities beneficially owned by such Selling Security Holder and
listed in Item (3) above). This Agreement shall be governed in all respects by
the laws of the State of New York.
-28-
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
-----------------------------
-------------------------------------
SELLING SECURITY HOLDER
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
---------------------------------
Name:
Title:
▇▇▇▇▇▇ FINANCIAL TRUST I
By:
---------------------------------
Name:
Title: Administrative Trustee
▇▇▇▇▇▇ CO.
By:
---------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
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30
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
-------------------------------------
Attention:
--------------------------
-------------------------------------
-------------------------------------
-------------------------------------
Re: ▇▇▇▇▇▇ Financial Trust I (the "Trust")
5-1/4% Convertible Quarterly Income Preferred
Securities (the "Preferred Securities")
--------------------------------------------------
Dear Sirs:
Please be advised that _________________________ has transferred
_________ Preferred Securities, or $__________ aggregate principal amount of
the ▇▇▇▇▇▇ Co. (the "Company") 5 1/4% Convertible Subordinated Debentures due
December 1, 2027 (the "Debentures") or _______ shares of the Company's common
stock, $1.00 par value per share, issued on conversion of the Preferred
Securities and/or the Debentures ("Stock") pursuant to an effective Shelf
Registration Statement on Form S-3 (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if
any, of the Securities Act of 1933, as amended, have been satisfied with respect
to the transfer described above and that the above-named beneficial owner of the
Preferred Securities, Debentures or Stock is named as a "Selling Security
Holder" in the Prospectus dated __________ __, ____ or in amendments or
supplements thereto, and that the aggregate principal amount of the Debentures,
or number of shares of Preferred Securities or shares of Stock transferred are
(a portion of) the Debentures, the Preferred Securities or Stock listed in such
Prospectus, as amended or supplemented, opposite such owner's name.
Dated:
Very truly yours,
----------------------------------------
(Name)
-9-
