REGISTRATION RIGHTS AGREEMENT Dated as of April 5, 2007 by and among Security Capital Assurance Ltd, as Issuer, and Lehman Brothers Inc. Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wachovia Capital Markets, LLC, as Initial Purchasers
EXHIBIT
4.6
Execution
Copy
Dated
as of April 5, 2007
by
and among
as
Issuer,
and
Xxxxxx
Brothers Inc.
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and
Wachovia
Capital Markets, LLC,
as
Initial Purchasers
This
Registration Rights Agreement (this “Agreement”)
is
dated as of April 5, 2007 by and among Security Capital Assurance Ltd, a Bermuda
limited company (the “Company”)
and
Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
Wachovia Capital Markets, LLC as Representatives of other Initial Purchasers
(each an “Initial
Purchaser” and,
collectively, the “Initial
Purchasers”), each
of
whom has agreed to purchase the Company’s Fixed/Floating Series A Perpetual
Non-Cumulative Preference Shares, having a par value of US $0.01 per share
and a
liquidation preference of US $1,000 per share (the “Preference
Shares”) pursuant
to the Purchase Agreement (as defined below).
This
Agreement is made pursuant to the Purchase Agreement, dated March 29, 2007
(the
“Purchase
Agreement”), by
and
among the Company and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Preference Shares, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the obligations of the Initial Purchasers
set forth in Section 7(j) of the Purchase Agreement.
The
parties hereby agree as follows:
SECTION
1. DEFINITIONS
As
used
in this Agreement, the following capitalized terms shall have the following
meanings:
Act:
The U.S.
Securities Act of 1933, as amended, or any successor statute and the rules
and
regulations promulgated by the Commission (as defined below)
thereunder.
Affiliate:
As
defined in Rule 144 of the Act.
Board
Resolutions:
The
Resolutions of a Subcommittee of the Board of Directors of the Company, dated
March 29, 2007, setting forth the rights, preferences and other terms of the
Preference Shares.
Broker-Dealer:
Any
broker or dealer registered under the Exchange Act.
Business
Day:
Any day
that is not a Saturday, Sunday or other day on which banking institutions in
Bermuda and New York, New York are authorized or required by law to close.
If
the time to perform any action hereunder falls on a day that is not a Business
Day, such time will be extended to the next Business Day and no additional
dividends shall accrue on such payment for the intervening period.
Certificated
Securities:
Definitive Preference Shares as defined in the Board Resolutions.
Closing
Date:
The
date of this Agreement.
Commission:
The
U.S. Securities and Exchange Commission.
Consummate:
An
Exchange Offer shall be deemed “Consummated” for purposes of this Agreement upon
the occurrence of (a) the filing and effectiveness under the Act of the Exchange
Offer Registration Statement relating to the Exchange Preference Shares to
be
issued in the Exchange Offer, (b) the maintenance of such Exchange Offer
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the period required pursuant to Section
3(b) hereof and
(c)
the
delivery by the Company to the Registrar and Transfer Agent of Exchange
Preference Shares in the same aggregate number as the aggregate number of
Preference Shares validly tendered by Holders thereof pursuant to the Exchange
Offer.
Consummation
Deadline: As
defined in Section 3(b) hereof.
Dividend
Payment Date:
As
defined in the Board Resolutions.
DTC:
As
defined in Section 6(c)(v) hereof.
Effectiveness
Deadline:
The
Exchange Offer Effectiveness Deadline or the Shelf Effectiveness Deadline,
as
applicable.
Exchange
Act:
The
U.S. Securities Exchange Act of 1934, as amended, or any successor statute,
and
the rules and regulations promulgated by the Commission thereunder.
Exchange
Preference Shares:
The
Company’s Fixed/Floating Series A Perpetual Non-Cumulative Preference Shares,
registered under the Act in the Exchange Offer.
Exchange
Offer:
The
exchange and issuance by the Company of an aggregate number of Exchange
Preference Shares (which shall be registered pursuant to the Exchange Offer
Registration Statement) equal to the outstanding aggregate number of Preference
Shares that are validly tendered by such Holders in connection with such
exchange and issuance.
Exchange
Offer Effectiveness Deadline:
As
defined in Section 3(a) hereof.
Exchange
Offer Filing Deadline:
As
defined in Section 3(a) hereof.
Exchange
Offer Registration Statement:
The
Registration Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt
Resales:
The
transactions in which the Initial Purchasers propose to sell the Preference
Shares to certain “qualified institutional buyers,” as such term is defined in
Rule 144A under the Act, and certain persons who are not U.S. Persons (as
defined in Regulation S) in offshore transactions pursuant to Regulation S
under
the Act.
Filing
Deadline:
The
Exchange Offer Filing Deadline or the Shelf Filing Deadline, as
applicable.
Free
Writing Prospectus:
Each
free writing prospectus (as defined in Rule 405 under the Securities Act)
prepared by or on behalf of the Company or used or referred to by the Company
in
connection with the sale of the Preference Shares or the Exchange Preference
Shares.
Holders:
As
defined in Section 2 hereof.
Person:
means
any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, limited liability company or
government or other entity.
Prospectus:
The
prospectus included in a Registration Statement, including any preliminary
prospectus, as amended or supplemented by any prospectus supplement and by
all
other
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amendments
thereto, including post-effective amendments, and all material incorporated
by
reference into such Prospectus.
Recommencement
Date:
As
defined in Section 6(e) hereof.
Registrar
and Transfer Agent: The
Bank
of New York.
Registration
Default:
As
defined in Section 5 hereof.
Registration
Period:
As
defined in Section 3(c) hereof.
Registration
Statement:
Any
registration statement of the Company relating to (a) an offering of Exchange
Preference Shares pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case (i) that is filed pursuant to the provisions of this
Agreement and (ii) including the Prospectus included therein, all amendments
and
supplements thereto (including post-effective amendments) and all exhibits
and
material incorporated by reference therein.
Regulation
S:
Regulation S promulgated under the Act.
Rule
144:
Rule
144 promulgated under the Act.
Shelf
Effectiveness Deadline:
As
defined in 4(a) hereof.
Shelf
Filing Deadline:
As
defined in Section 4(a) hereof.
Shelf
Registration Statement:
As
defined in Section 4(a) hereof.
Shelf
Period:
As
defined in Section 4(a) hereof.
Suspension
Notice:
As
defined in Section 6(e) hereof.
Transfer
Restricted Securities:
(a)
Each Preference Share until the earliest to occur of (i) the date on which
such
Preference Share has been exchanged by a Person other than a Broker-Dealer
for
an Exchange Preference Share in the Exchange Offer and is entitled to be resold
to the public by such Person without complying with the prospectus delivery
requirements of the Act, (ii) the date on which such Preference Share has been
effectively registered under the Act and disposed of in accordance with the
Shelf Registration Statement, (iii) the date on which such Preference Share
is
distributed to the public pursuant to Rule 144 under the Act, or (iv) the date
on which such Preference Share is eligible to be distributed to the public
pursuant to Rule 144(k) under the Act, and (b) each Exchange Preference Share
acquired by a Broker-Dealer in the Exchange Offer of a Preference Share for
such
Exchange Preference Share, until the date on which such Exchange Preference
Share is sold to a purchaser who receives from such Broker-Dealer on or prior
to
the date of such sale a copy of the Prospectus contained in the Exchange Offer
Registration Statement.
SECTION
2. HOLDERS
A
Person
is deemed to be a holder of Transfer Restricted Securities (each, a
“Holder”)
whenever
such Person owns Transfer Restricted Securities.
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SECTION
3. REGISTERED EXCHANGE OFFER
(a)
The
Company shall (i) cause the Exchange Offer Registration Statement to be filed
with the Commission on or prior to 180 days after the Closing Date (such 180th
day being the “Exchange
Offer Filing
Deadline”), (ii)
use
its commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective on or prior to 240 days after the Closing Date
(such 240th day being the “Exchange
Offer Effectiveness
Deadline”), (iii)
in
connection with the foregoing use its commercially reasonable efforts to, (A)
file all pre-effective amendments to such Exchange Offer Registration Statement
as may be necessary in order to cause it to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C)
cause
all
necessary filings, if any, in connection with the registration and qualification
of the Exchange Preference Shares to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer
provided, however, that the Company shall not be required to take any action
that would subject it to general service of process or taxation in any
jurisdiction where it is not already subject and (iv) as promptly as practicable
after the effectiveness of such Exchange Offer Registration Statement, unless
the Exchange Offer shall not be permitted by applicable law or Commission
policy, commence the Exchange Offer and use its commercially reasonable efforts
to Consummate the Exchange Offer on or prior to 30 days, or longer, if required
by federal securities laws after the date on which the Exchange Offer
Registration Statement was declared effective by the Commission. The Exchange
Offer shall be on the appropriate form permitting (I) registration of the
Exchange Preference Shares to be offered in exchange for the Transfer Restricted
Securities and (II) resales of Exchange Preference Shares by Broker-Dealers
that
tendered into the Exchange Offer Preference Shares that such Broker-Dealers
acquired for their own account as a result of market-making activities or other
trading activities (other than Preference Shares acquired directly from the
Company or any of its Affiliates) as contemplated by Section 3(c)
below.
(b)
Unless
the Exchange Offer shall not be permitted by applicable law or Commission policy
(after the procedures set forth in Section 6(a)(A) have been complied with),
the
Company shall use its commercially reasonable efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided,
however,
that in
no event shall such period be less than 20 Business Days. The Company shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Exchange Preference Shares shall
be included in the Exchange Offer Registration Statement. The Company shall
use
its commercially reasonable efforts to cause the Exchange Offer to be
Consummated within 30 days after the Exchange Offer Registration Statement
has
become effective, but in no event (unless required by federal securities laws)
later than 270 days after the Closing Date (such 270th day being the
“Consummation
Deadline”).
(c)
The
Company shall include a “Plan of Distribution” section in the Prospectus
contained in the Exchange Offer Registration Statement and indicate therein
that
any Broker-Dealer who holds Transfer Restricted Securities that were acquired
for the account of such Broker-Dealer as a result of market-making activities
or
other trading activities (other than Transfer Restricted Securities acquired
directly from the Company or any Affiliate of the Company), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such “Plan of
Distribution” section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order
to
permit such sales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by
the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman
& Sterling
no-action letter (available July 2, 1993).
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Because
such Broker-Dealer may be deemed to be an “underwriter” within the meaning of
the Act and must, therefore, deliver a prospectus meeting the requirements
of
the Act in connection with its initial sale of any Exchange Preference Shares
received by such Broker-Dealer in the Exchange Offer, the Company shall permit
the use of the Prospectus contained in the Exchange Offer Registration Statement
by such Broker-Dealer to satisfy such prospectus delivery requirement. To the
extent necessary to ensure that the Prospectus contained in the Exchange Offer
Registration Statement is available for sales of Exchange Preference Shares
by
Broker-Dealers, the Company agrees to use its commercially reasonable efforts
to
keep the Exchange Offer Registration Statement continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Section 6(a) and 6(c) hereof and in conformity with the requirements of
this
Agreement, the Act and the policies, rules and regulations of the Commission
as
announced from time to time, for a period of one year from the date on which
the
Exchange Offer is Consummated or such shorter period as will terminate when
all
Transfer Restricted Securities covered by such Registration Statement have
been
sold pursuant thereto (the “Registration
Period”).
The
Company shall provide sufficient copies of the latest version of such Prospectus
to such Broker-Dealers, promptly upon request, and in no event later than one
day after such request, at any time during such period.
SECTION
4. SHELF
REGISTRATION
(a)
Shelf
Registration.
If (i)
the Company is not required to file the Exchange Offer Registration Statement,
(ii) the Exchange Offer is not permitted by applicable law or Commission policy
(after the Company has complied with the procedures set forth in Section 6(a)(A)
hereof), (iii) the Commission shall notify the Company that it shall refuse
to
declare effective the Exchange Offer Registration Statement filed with the
Commission or (iv) if any Holder of Transfer Restricted Securities shall notify
the Company prior to the 20th Business Day following the Consummation of the
Exchange Offer that (A) such Holder was prohibited by applicable law or
Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Exchange Preference Shares acquired by it in the Exchange
Offer to the public without delivering a prospectus and the Prospectus contained
in the Exchange Offer Registration Statement is not appropriate or available
for
such resales by such Holder or (C) such
Holder is a Broker-Dealer and holds Preference Shares acquired directly from
the
Company or any Affiliate of the Company, then the Company shall:
(I)
use
its
commercially reasonable efforts to cause to be filed, on or prior to 30 days
after the earlier of (x) the date on which the Company determines that the
Exchange Offer Registration Statement is not required to be filed or cannot
be
filed as a result of clause (a)(i) or (a)(ii) of this Section 4(a) and (y)
the
date on which the Company receives the notice specified in clause (a)(iii)
or
(a)(iv)of this Section 4(a) (the 30th day after such earlier date (and in any
event within 300 days after the Closing Date), the “Shelf
Filing Deadline”), a
shelf
registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the “Shelf
Registration Statement”)), relating
to all Transfer Restricted Securities of Holders that have provided information
pursuant to Section 4(b) hereof; and
(II)
use
its
commercially reasonable efforts to cause such Shelf Registration Statement
to
become effective on or prior to 60 days after the Filing Deadline for the Shelf
Registration Statement (such 60th day the “Shelf
Effectiveness Deadline”).
If,
after
the Company has filed an Exchange Offer Registration Statement that satisfies
the requirements of Section 3(a) above, the Company is required to file and
make
effective a Shelf
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Registration
Statement solely because the Exchange Offer is not permitted under applicable
federal law or Commission policy (i.e.,
clause
(a)(ii) of this Section 4), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (I) above;
provided
that,
in
such event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (II) above.
To
the
extent necessary to ensure that the Shelf Registration Statement is available
for sales of Transfer Restricted Securities by the Holders thereof entitled
to
the benefit of this Section 4(a) and the other securities required to be
registered therein pursuant to Section 6(b)(ii) hereof, the Company shall use
its commercially reasonable efforts to keep any Shelf Registration Statement
required by this Section 4(a) continuously effective, supplemented, amended
and
current as required by and subject to the provisions of Sections 6(b) and 6(c)
hereof and in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time
to
time, for a period of at least two years (as extended pursuant to Section
6(d)(i) hereof) following the Closing Date, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto (the “Shelf
Period”).
(b)
Provision
by Holders of Certain Information in Connection with the Shelf Registration
Statement.
No
Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until (i) such Holder furnishes to the Company in writing,
within 20 days after receipt of a written request therefor, the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act for
use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein, and (ii) in the case of an underwritten
offering, such Holder completes and executes all questionnaires, powers of
attorney, underwriting agreements, lock-up letters and other documents
reasonably requested by the Company in connection with the terms of the
underwritten offering. Furthermore, no Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes
to
the Company in writing, within 10 Business Days after receipt of a request
therefor, such Holder’s comments to the disclosure relating to such Holder in
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
shall be entitled to additional non-cumulative dividends pursuant to Section
5
hereof unless and until such Holder shall have provided all such information.
By
its acceptance of Transfer Restricted Securities, each Holder agrees to notify
the Company promptly if any of the information previously furnished is
misleading or inaccurate in any material respect and to promptly furnish
additional information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially
misleading.
SECTION
5. ADDITIONAL
DIVIDENDS
If
(a)
any Registration Statement required by this Agreement is not filed with the
Commission on or prior to the applicable Filing Deadline, (b) any such
Registration Statement has not been declared effective by the Commission on
or
prior to the applicable Effectiveness Deadline, (c) the Exchange Offer has
not
been Consummated on or prior to the Consummation Deadline or (d) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose during the Registration Period or Shelf Period, as
applicable, without being succeeded immediately by a post-effective amendment
or
an additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again
be
declared effective or made usable (each such event referred to in clauses (a)
through (d), a “Registration
Default”), then
the
Company hereby agrees to pay to each Holder of Transfer Restricted Securities
affected thereby additional dividends at a rate of 0.25% per annum on the
liquidation preference of Transfer Restricted Securities held by such Holder
for
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the
first
90-day period immediately following the occurrence of such Registration Default.
The amount of the additional non-cumulative dividends shall increase by an
additional 0.25% per annum on the liquidation preference of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum rate of additional non-cumulative
dividends of 0.50% per annum on the liquidation preference of Transfer
Restricted Securities; provided
that
the
Company shall in no event be required to pay additional non-cumulative dividends
for more than one Registration Default at any given time. Notwithstanding
anything to the contrary set forth herein, (i) upon filing of the Exchange
Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of clause (a) above, (ii) upon the effectiveness of
the
Exchange Offer Registration Statement (and/or, if applicable the Shelf
Registration Statement), in the case of clause (b) above, (iii) upon
Consummation of the Exchange Offer, in the case of clause (c) above, or (iv)
upon the filing of a post-effective amendment to the Registration Statement
or
an additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again
be
declared effective or made usable, in the case of clause (d) above, the
additional dividends payable with respect to the Transfer Restricted Securities
as a result of such clause (a), (b), (c) or (d), as applicable, shall cease
to
be payable on the date of such cure.
All
additional non-cumulative dividends shall be paid to the Holders entitled
thereto, in the manner provided for the payment of dividends in the Board
Resolutions, on each Dividend Payment Date, as more fully set forth in the
Board
Resolutions. Notwithstanding the fact that any securities for which additional
dividends are due cease to be Transfer Restricted Securities, all obligations
of
the Company to pay additional dividends with respect to securities shall survive
until such time as such obligations with respect to such securities shall have
been satisfied in full.
A
Holder
of Preference Shares or Exchange Preference Shares who is not entitled to the
benefits of a Shelf Registration Statement shall not be entitled to additional
dividends with respect to a Registration Default that pertains to such Shelf
Registration Statement.
SECTION
6. REGISTRATION
PROCEDURES
(a)
Exchange
Offer Registration Statement.
In
connection with the Exchange Offer, the Company shall (i) comply with all
applicable provisions of Section 6(c) below, (ii) use its commercially
reasonable efforts to effect such exchange and to permit the resale of Exchange
Preference Shares by any Broker-Dealer that tendered Preference Shares in the
Exchange Offer that such Broker-Dealer acquired for its own account as a result
of its market-making activities or other trading activities (other than
Preference Shares acquired directly from the Company or any Affiliate of the
Company) being sold in accordance with the intended method or methods of
distribution thereof set forth in the Registration Statement, and (iii) comply
with all of the following provisions:
(A)
If,
following the date hereof there has been announced a change in Commission policy
with respect to exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a substantial question
as to
whether the Exchange Offer is permitted by applicable federal law, the Company
hereby agrees to seek a no-action letter or other favorable decision from the
Commission allowing the Company to Consummate an Exchange Offer for such
Transfer Restricted Securities. The Company hereby agrees to pursue the issuance
of such a decision to the Commission staff level but shall not be required
to
take commercially unreasonable action to effect a change in Commission policy.
In connection with the foregoing, the Company hereby agrees to take all such
other actions as may be requested by the Commission or otherwise required in
connection with the issuance of such decision, including without limitation
(I)
participating in telephonic conferences with the Commission staff, (II)
delivering to the Commission staff an analysis prepared by counsel to the
Company setting forth the legal
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bases,
if
any, upon which such counsel has concluded that such an Exchange Offer should
be
permitted and (III) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(B)
As
a
condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder who is a
Broker-Dealer) shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (I) it is not an
Affiliate of the Company, (II) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Preference Shares to be issued
in
the Exchange Offer and (III) it is acquiring the Exchange Preference Shares
in
its ordinary course of business. As a condition to its participation in the
Exchange Offer, each Holder using the Exchange Offer to participate in a
distribution of the Exchange Preference Shares will be required to acknowledge
and agree that, if the resales are of Exchange Preference Shares obtained by
such Holder in exchange for Preference Shares acquired directly from the Company
or any Affiliate of the Company, it (1) could not, under Commission policy
as in
effect on the date of this Agreement, rely on the position of the Commission
enunciated in Xxxxxx
Xxxxxxx and Co., Inc.
(available March 27, 1991), Xxxxxx
Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon
Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission’s letter to Shearman
& Sterling dated
July 2, 1993, and similar no-action letters (including, if applicable, any
no-action letter obtained pursuant to clause (A) above), and (2) must comply
with the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a secondary resale
transaction must be covered by an effective Registration Statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K.
(C)
Prior
to
effectiveness of the Exchange Offer Registration Statement, the Company shall,
to the extent required by the Commission, provide a supplemental letter to
the
Commission (I) stating that the Company is registering the Exchange Offer in
reliance on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc.
(available March 27, 1991), Exxon
Capital Holdings Corporation
(available May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc.
(available June 5, 1991) as interpreted in the Commission’s letter to
Shearman
& Sterling
dated
July 2, 1993, and, if applicable, any no-action letter obtained pursuant to
clause (A) above, (II) including a representation that the Company has not
entered into any arrangement or understanding with any Person to distribute
the
Exchange Preference Shares to be received in the Exchange Offer and that, to
the
best of the Company’s information and belief, each Holder participating in the
Exchange Offer is acquiring the Exchange Preference Shares in its ordinary
course of business and has no arrangement or understanding with any Person
to
participate in the distribution of the Exchange Preference Shares received
in
the Exchange Offer and (III) any other undertaking or representation required
by
the Commission as set forth in any no-action letter obtained pursuant to clause
(A) above, if applicable.
(b)
Shelf
Registration Statement.
In
connection with the Shelf Registration Statement, the Company
shall:
(i) comply
with all the provisions of Section 6(c) and (d) below and use its commercially
reasonable efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof (as indicated in the information furnished
to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company
will prepare and file with the Commission a Registration Statement relating
to
the
-8-
registration
on any appropriate form under the Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof within the time periods and otherwise
in accordance with the provisions hereof; and
(ii)
issue,
upon the request of any Holder or purchaser of Preference Shares covered by
any
Shelf Registration Statement contemplated by this Agreement, Exchange Preference
Shares in an aggregate number equal to the aggregate number of Preference Shares
sold pursuant to the Shelf Registration Statement and surrendered to the Company
for cancellation; provided that such Holder provides all documentation
reasonably requested by the Company in connection with such issuance; the
Company shall register Exchange Preference Shares on the Shelf Registration
Statement for this purpose and issue the Exchange Preference Shares to the
purchaser(s) of securities subject to the Shelf Registration Statement in the
names as such purchaser(s) shall designate.
(c)
General
Provisions.
In
connection with any Registration Statement and any related Prospectus required
by this Agreement, the Company shall:
(i)
use
its
commercially reasonable efforts to keep such Registration Statement continuously
effective and provide all requisite financial statements for the period
specified in Section 3 or 4 hereof, as applicable. Upon the occurrence of any
event that would cause (A) any such Registration Statement to contain an untrue
statement of material fact or omit to state any material fact necessary to
make
the statements therein not misleading or the Prospectus contained in such
Registration Statement to contain 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 or (B)
such Registration Statement or the Prospectus contained therein not to be
effective and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file as promptly as
practicable an appropriate amendment to such Registration Statement curing
such
defect, and, if Commission review is required, use its commercially reasonable
efforts to cause such amendment to be declared effective as soon as practicable.
If at any time the Commission shall issue any stop order suspending the
effectiveness of any Registration Statement, or any state securities commission
or other regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company shall use its commercially
reasonable efforts to obtain the withdrawal or lifting of such order at the
earliest practicable time;
(ii)
prepare
and file with the Commission such amendments and post-effective amendments
to
the applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set forth in Section
3 or 4 hereof, as the case may be; cause the Prospectus to be supplemented
by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462,
as
applicable, under the Act in a timely manner; and comply with the provisions
of
the Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in
such Registration Statement or supplement to the Prospectus;
(iii)
in
connection with any sale of Transfer Restricted Securities that will result
in
such securities no longer being Transfer Restricted Securities, cooperate with
the Holders to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to enable such Transfer Restricted Securities to be
registered in such denominations and such names as the selling Holders may
request at least three Business Days prior to such sale of Transfer Restricted
Securities;
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(iv)
use
its
commercially reasonable efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be
necessary to enable the seller or sellers thereof to consummate the disposition
of such Transfer Restricted Securities other than as set forth in Section
6(d)(x) hereof; provided,
however, that
the
Company shall not be required to register or qualify as a foreign corporation
or
as a dealer in securities in any jurisdiction where it is not now so qualified
or to take any action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(v)
provide
a
CUSIP number for all Transfer Restricted Securities not later than the effective
date of a Registration Statement covering such Transfer Restricted Securities
and provide The Depository Trust Company (“DTC”)
with
certificates for the Transfer Restricted Securities which are in a form eligible
for deposit with DTC; and
(vi)
otherwise
use its commercially reasonable efforts to comply with all applicable rules
and
regulations of the Commission, and make generally available to its security
holders with regard to any applicable Registration Statement, as soon as
practicable, a consolidated earnings statement meeting the requirements of
Rule
158 under the Act (which need not be audited) covering a twelve-month period
beginning after the effective date of the registration statement (as such term
is defined in paragraph (c) of Rule 158 under the Act).
(d)
Additional
Provisions Applicable to Shelf Registration Statements and Certain Exchange
Offer Prospectuses.
In
connection with each Shelf Registration Statement, and each Exchange Offer
Registration Statement if and to the extent that an Initial Purchaser has
notified the Company that it is a holder of Transfer Restricted Securities
(for
so long as such Preference Shares are Transfer Restricted Securities or for
the
period provided in Section 3 hereof, whichever is shorter), with respect to
any
Holder selling pursuant to the Shelf Registration Statement or with respect
to
any such Initial Purchaser, the Company shall:
(i)
advise
such Holder as promptly as practicable and, if requested by such Holder, confirm
such advice in writing, (A) when the Prospectus or any Prospectus supplement
or
post-effective amendment has been filed, and, with respect to any applicable
Registration Statement or any post-effective amendment thereto, when the same
has become effective, (B) of any request by the Commission for amendments to
the
Registration Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of
the
issuance by the Commission of any stop order suspending the effectiveness of
the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in
the
Registration Statement, the Prospectus, any amendment or supplement thereto
or
any document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement in order
to
make the statements therein not misleading, or that requires the making of
any
additions to or changes in the Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii)
subject
to Section 6(c)(i) hereof, if any fact or event contemplated by Section
6(d)(i)(D) above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related Prospectus
or
any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain 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;
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(iii)
furnish
to such Holder in connection with such exchange or sale, if any, before filing
with the Commission, copies of any Registration Statement or any Prospectus
included therein (except the Prospectus included in the Exchange Offer
Registration Statement at the time it was declared effective) or any amendments
or supplements to any such Registration Statement or Prospectus (including
all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders in connection with such sale, if any, for a period
of
not less than five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to any
such
Registration Statement or Prospectus (including all such documents incorporated
by reference) to which such Holders shall reasonably object within five Business
Days after the receipt thereof. A Holder shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment, Prospectus
or
supplement, as applicable, as proposed to be filed, contains an untrue statement
of a material fact or omits to state any material fact necessary to make the
statements therein not misleading or fails to comply with the applicable
requirements of the Act;
(iv)
promptly
prior to the filing of any document that is to be incorporated by reference
into
a Registration Statement or Prospectus, provide copies of such document, upon
request, to such Holder in connection with such exchange or sale, if any, make
the Company’s representatives reasonably available for discussion of such
document and other customary due diligence matters and include such information
in such document prior to the filing thereof as such Holders may reasonably
request;
(v)
subject
to a confidentiality agreement reasonable acceptable to the Company, make
available, at reasonable times, for inspection by such Holder and any attorney
or accountant retained by such Holders, all financial and other records,
pertinent corporate documents of the Company reasonably requested by such
persons and cause the Company’s officers, directors and employees to supply all
information reasonably requested by any such Holder, attorney or accountant,
in
connection with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness;
(vi)
if
requested by any such Holders in connection with such exchange or sale, promptly
include in any Registration Statement or Prospectus, pursuant to a supplement
or
post-effective amendment if necessary, such information as such Holders may
reasonably request to have included therein, including, without limitation,
information relating to the “Plan of Distribution” of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified
of
the matters to be included in such Prospectus supplement or post-effective
amendment;
(vii)
upon
request, furnish to such Holder in connection with such exchange or sale,
without charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto (without all documents
incorporated by reference therein or exhibits thereto, unless
requested);
(viii)
upon
request, deliver to such Holder without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Holder reasonably may request. The Company hereby consents to the use
(in accordance with law) of the Prospectus and any amendment or supplement
thereto by each selling Holder in connection with the
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offering
and the sale of the Transfer Restricted Securities covered by the Prospectus
or
any amendment or supplement thereto;
(ix)
upon
the
reasonable request of any such Holder, enter into such agreements (including
underwriting agreements containing customary terms) and make such reasonable
and
customary representations and warranties and take all such other reasonable
and
customary actions in connection therewith in order to expedite or facilitate
the
disposition of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be reasonably
requested by any such Holder in connection with any sale or resale pursuant
to
any applicable Registration Statement. In such connection, the Company
shall:
(A)
upon
the
reasonable request of such Holder, furnish (or in the case of paragraphs (2)
and
(3), use its commercially reasonable efforts to cause to be furnished) to each
such Holder, upon Consummation of the Exchange Offer or upon the effectiveness
of the Shelf Registration Statement, as the case may be:
(1)
a
certificate in customary form, dated such date, signed on behalf of the Company
by (x) the President or any Vice President and (y) a principal financial or
accounting officer of the Company, confirming, as of the date thereof, the
type
of matters set forth in Section 7(j) of the Purchase Agreement with respect
to
the Registration Statement and the securities registered thereunder and such
other similar matters as such Holders may reasonably request;
(2)
an
opinion in customary form, dated the date of Consummation of the Exchange Offer
or the date of effectiveness of the Shelf Registration Statement, as the case
may be, of counsel for the Company covering matters set forth in the opinions
provided on the Closing Date pursuant to Sections 7(c) through (f) of the
Purchase Agreement and such other matters as such Holder may reasonably request;
and
(3) a
customary comfort letter, dated the date of Consummation of the Exchange Offer,
or as of the date of effectiveness of the Shelf Registration Statement, as
the
case may be, from the Company’s independent accountants, in the customary form
and covering matters of the type customarily covered in comfort letters to
underwriters in connection with underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant to Section 7(g)
of the Purchase Agreement; and
(B) deliver
such other documents and certificates as may be reasonably requested by the
selling Holders and as are customarily delivered in similar offerings to
evidence compliance with the matters covered in clause (A) above and with any
customary conditions contained in any agreement entered into by the Company
pursuant to this clause (ix);
(x)
prior
to
any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities or
Blue
Sky laws of such jurisdictions as the selling Holders may reasonably request
and
use its commercially reasonable efforts to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the applicable Registration Statement;
provided,
however, that
the
Company shall not be required to register or qualify as a foreign corporation
or
as a dealer in securities in any jurisdiction where it is not now so qualified
or to take any action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
and
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(xi)
provide
as promptly as practicable to each such Holder, upon request, each document
filed with the Commission pursuant to the requirements of Section 13 or Section
15(d) of the Exchange Act.
(e)
Restrictions
on Holders.
Each Holder’s acquisition of a Transfer Restricted Security constitutes
such Holder’s agreement that, upon receipt of the notice referred to in Section
6(d)(i)(C) or any notice from the Company of the existence of any fact of the
kind described in Section 6(d)(i)(D) hereof (in each case, a “Suspension
Notice”), such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until (i) such Holder has
received copies of the supplemented or amended Prospectus contemplated by
Section 6(d)(ii) hereof, or (ii) such Holder is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference
in
the Prospectus (in each case, the “Recommencement
Date”).
Each
Holder receiving a Suspension Notice shall be required to either (I) destroy
any
Prospectuses, other than permanent file copies, then in such Holder’s possession
that have been replaced by the Company with a more recently dated Prospectus
or
(II) deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies, then in such Holder’s possession of the Prospectuses
covering such Transfer Restricted Securities that was current at the time of
receipt of the Suspension Notice. The time periods regarding such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by a number of days equal to the number of days in the period from and including
the date of delivery of the Suspension Notice to the date of delivery of the
Recommencement Date.
SECTION
7. REGISTRATION
EXPENSES
(a)
All
expenses incident to the Company’s performance of or compliance with this
Agreement (other than underwriting discounts and commissions) will be borne
by
the Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state
Blue
Sky or securities laws; (iii) all expenses of printing (including certificates
for the Exchange Preference Shares to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and all reasonable fees
and disbursements of one counsel for the Holders of Transfer Restricted
Securities (which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx LLP or such other
counsel as may be selected by a majority of such Holders); and (v) all fees
and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by
or
incident to such performance).
The
Company will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees
and
expenses of any Person, including special experts, retained by the
Company.
(b)
In
connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and
the Shelf Registration Statement), the Company will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities who are tendering
Preference Shares into in the Exchange Offer and/or selling or reselling
Preference Shares or Exchange Preference Shares pursuant to the “Plan of
Distribution” contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel (who shall be Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP unless another firm shall be chosen by the Holders of a majority
of
the Transfer Restricted Securities for whose benefit such Registration Statement
is being prepared). The Company shall not be
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required
to pay any underwriting discounts, commissions or similar fees related to the
sale of any securities, except as contemplated by the Purchase
Agreement.
SECTION 8. INDEMNIFICATION
(a) The
Company will indemnify and hold harmless each Holder, its directors, officers
and each Person, if any, who controls such Holder (within the meaning of
Section
15 of the Act or Section 20 of the Exchange Act), against any losses, claims,
damages or liabilities, joint or several, to which such Holder may become
subject, under the 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
Registration Statement, Prospectus, Free Writing Prospectus or any “issuer
information” (as defined in Rule 433 of the Act) filed or required to be filed
pursuant to Rule 433(d) under the Act, 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
will reimburse each Holder for any legal expenses of one counsel (which shall
be
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP or such other counsel as may be selected by a
majority of Holders in addition to any local counsel as may be selected by
a
majority of such Holders) engaged reasonably incurred by such Holder in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
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 any Registration Statement, Prospectus,
Free Writing Prospectus or any “issuer information,” in reliance upon and in
conformity with written information furnished to the Company by any Holder
expressly for use therein.
(b) By
its
acquisition of Transfer Restricted Securities, each Holder of Transfer
Restricted Securities will indemnify and hold harmless the Company against
any
losses, claims, damages or liabilities to which the Company may become subject,
under the 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
Registration Statement, Prospectus, Free Writing Prospectus or any “issuer
information,” 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 any Registration Statement, Prospectus,
Free Writing Prospectus or any “issuer information,” in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use therein, and will reimburse the Company for any legal or
other
expenses reasonably incurred by the Company in connection with investigating
or
defending any such action or claim as such expenses are incurred, including
the
reasonable fees and expenses of one counsel (in addition to any applicable
local
counsel).
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise
than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein
and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory
to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of
investigation (except as set
-00-
xxxxx
xxxxx). Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to
represent the indemnified party would present such counsel with a conflict
of
interest; (ii) the actual or potential defendants in, or targets of, any
such
action include both the indemnified party and the indemnifying party, and
the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. No indemnifying party shall, without the written
consent of the indemnified party, 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 party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(1) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (2) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or
on behalf of any indemnified party.
(d) If
the
indemnification provided for in this Section 8 is unavailable to or insufficient
to hold harmless an indemnified party 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 party 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 benefits received by
the
Company on the one hand and the Holders on the other from the initial sale
by
the Company of the Transfer Restricted Securities (or in the case of Exchange
Preference Shares that are Transfer Restricted Securities, the sale of the
Preference Shares for which such Exchange Preference Shares were exchanged).
If,
however, the allocation provided by the immediately preceding sentence is
not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also
the relative fault of the Company on the one hand and the Holders on the
other
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 benefits received by
the
Company on the one hand and the Holders on the other shall be deemed to be
in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total purchasing
discounts and commissions received by the Holders. The relative fault shall
be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company on the one
hand
or the Holders on the other and the parties' relative intent, knowledge,
access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable
if
contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose)
or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (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 in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such
action or claim. Notwithstanding the provisions of this subsection (d), no
Holder shall be required to contribute any amount in excess of the amount
by
which the total price at which the Transfer
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Restricted
Securities purchased by it, pursuant to the Registration Statement, and
distributed to the public were offered to the public exceeds the amount of
any
damages which such Holder has otherwise been required to pay by reason of
such
untrue or alleged untrue statement or omission or alleged omission No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Act) shall be entitled to contribution from any person who was not guilty
of
such fraudulent misrepresentation. The Holders' obligations in this subsection
(d) to contribute are several in proportion to their respective purchasing
obligations and not joint.
(e) The
obligations of the Company under this Section 8 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the
same
terms and conditions, to each person, if any, who controls any Holder within
the
meaning of the Act; and the obligations of the Holders under this Section
8
shall be in addition to any liability which the respective Holders may otherwise
have and shall extend, upon the same terms and conditions, to each officer
and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
SECTION
9. RULE
144A and Rule 144
The
Company agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company
(a) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available,
upon
request of any Holder, or beneficial owner of Transfer Restricted Securities
in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities designated by such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit
resales
of such Transfer Restricted Securities pursuant to Rule 144A, and (b) is
subject
to Section 13 or 15(d) of the Exchange Act, to use its commercially reasonable
efforts to make all filings required thereby in a timely manner in order
to
permit resales of such Transfer Restricted Securities pursuant to Rule
144.
SECTION
10. MISCELLANEOUS
(a) Remedies.
The provisions of Section 5 represent the sole monetary remedy available
to the
Holders in connection with any failure by the Company to comply with their
obligations under Sections 3 and 4 hereof. The Company acknowledges and agrees
that any failure by the Company to comply with its obligations under Sections
3
and 4 hereof may result in material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at law, that it will
not be
possible to measure damages for such injuries precisely and that, in the
event
of any such failure, the Initial Purchasers or any Holder may obtain such
relief
as may be required to specifically enforce the Company’s obligations under
Sections 3 and 4 hereof. The Company further agrees to waive the defense
in any
action for specific performance that a remedy at law would be
adequate.
(b) Free
Writing Prospectus. The Company represents, warrants and covenants that it
(including its agents and representatives) will not prepare, make, use,
authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) in connection with the issuance and sale
of the
Preference Shares and the Exchange Preference Shares, other than any
communication pursuant to Rule 134, Rule 135 or Rule 135c under the Securities
Act, any document constituting an offer to sell or solicitation of an offer
to
buy the Preference Shares or the Exchange Preference Shares that falls
within
the exception from the definition of prospectus in Section 2(a)(10)(a)
of the
Securities Act or a prospectus satisfying the requirements of section 10(a)
of
the Securities Act or of Rule 430, Rule 430A, Rule 430B, Rule 430C or Rule
431
under the Securities Act.
(c) No
Inconsistent Agreements.
The
Company will not, on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the
rights
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granted
to the Holders in this Agreement or otherwise conflicts with the provisions
hereof. The Company has not previously entered into any agreement granting
any
registration rights with respect to its securities to any Person that would
require such securities to be included in any Registration Statement filed
hereunder. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of
the Company’s securities under any agreement in effect on the date
hereof.
(d) Amendments
and Waivers.
The
provisions of this Agreement may not be amended, modified or supplemented,
and
waivers or consents to or departures from the provisions hereof may not be
given
unless (i) in the case of Section 5 hereof and this Section 10(d)(i), the
Company has obtained the written consent of Holders of all outstanding Transfer
Restricted Securities and (ii) in the case of all other provisions hereof,
the
Company has obtained the written consent of Holders of a majority of the
outstanding Transfer Restricted Securities (excluding Transfer Restricted
Securities held by the Company or its Affiliates). Notwithstanding the
foregoing, a waiver of or consent to departure from the provisions hereof
that
relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that does
not
affect directly or indirectly the rights of other Holders whose Transfer
Restricted Securities are not being tendered pursuant to such Exchange Offer,
may be given by the Holders of a majority of the outstanding Transfer Restricted
Securities subject to such Exchange Offer.
(e) Third
Party Beneficiary.
The
Holders shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchasers, on the
other
hand, and shall have the right to enforce such agreements directly to the
extent
they may deem such enforcement necessary or advisable to protect their rights
hereunder.
(f) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telecopier, or air courier guaranteeing overnight
delivery:
(i) if
to a
Holder, at the address set forth on the records of the Registrar and Transfer
Agent, with a copy to the Registrar and Transfer Agent; and
(ii) if
to the
Company:
One
Xxxxxxxxxx Xxxx
Xxxxxxxx
XX 00
Xxxxxxx
Xxxxxxxxx: Xxxxxxx
Xxxxxx Xxxxx
Fax: (000)
000-0000
with
a
copy to:
Xxxxxx
Xxxxxx & Reindell LLP
Eighty
Xxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxxx, Esq.
Fax:
(000) 000-0000
All
such
notices and communications shall be deemed to have been duly given at the
time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage
-17-
prepaid,
if mailed; when receipt is acknowledged, if telecopied; and on the next Business
Day, if timely delivered to an air courier guaranteeing overnight
delivery.
(g) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties, including without limitation and without
the
need for an express assignment, subsequent Holders; provided
that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement. If any transferee of any Holder shall acquire
Transfer Restricted Securities in any manner, whether by operation of law
or
otherwise, such Transfer Restricted Securities shall be held subject to all
of
the terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have agreed to be
bound
by and to perform all of the terms and provisions of this Agreement, including
the restrictions on resale set forth in this Agreement and, if applicable,
the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(h) Submission
to Jurisdiction.
The
Company irrevocably (i) agrees that any legal suit, action or proceeding
against
the Company brought by any Initial Purchaser or by any person who controls
any
Initial Purchaser arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal district
court
for the Southern District of New York and the New York County Court, (ii)
waives, to the fullest extent it may effectively do so, any objection which
it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company has appointed CT Corporation System, New
York,
New York, as its authorized agent (the “Authorized
Agent”)
upon
whom process may be served in any such action arising out of or based on
this
Agreement or the transactions contemplated hereby which may be instituted
in the
federal district court for the Southern District of New York and the New
York
County Court by any Initial Purchaser or by any person who controls any Initial
Purchaser, expressly consents to the jurisdiction of any such court in respect
of any such action, and waives any other requirements of or objections to
personal jurisdiction with respect thereto. Such appointment shall be
irrevocable. The Company represents and warrants that the Authorized Agent
has
agreed to act as such agent for service of process and agrees to take any
and
all action, including the filing of any and all documents and instruments
that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice
of
such service to the Company shall be deemed, in every respect, effective
service
of process upon the Company.
(i) Judgment
Currency.
In
respect of any judgment or order given or made for any amount due hereunder
that
is expressed and paid in a currency (the “judgment currency”) other than United
States dollars, the Company will indemnify each Initial Purchaser against
any
loss incurred by such Initial Purchaser as a result of any variation between
(i)
the rate of exchange at which the United States dollar amount is converted
into
the judgment currency for the purpose of such judgment or order and (ii)
the
rate of exchange at which an Initial Purchaser is able to purchase United
States
dollars with the amount of judgment currency actually received by such Initial
Purchaser. The foregoing indemnity shall constitute a separate and independent
obligation of the Company and shall continue in full force and effect
notwithstanding any such judgment or order aforesaid. The term “rate of
exchange” shall include any premiums and costs of exchange payable in connection
with the purchase of or conversion into United States dollars.
-18-
(j) Counterparts.
This
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.
(k) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(l) Governing
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK.
(m) Severability.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(n) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings,
other
than those set forth or referred to herein with respect to the registration
rights granted with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the
parties
with respect to such subject matter.
[Signature
Pages to Follow]
-19-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
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|
Name:
|
Xxxxxx
X. Xxxxxx
|
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|
Title:
|
Senior
Vice President and Chief Risk
Officer
|
||
|
XXXXXX
BROTHERS INC.
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
WACHOVIA
CAPITAL MARKETS, LLC
|
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|
By:
|
XXXXXX
BROTHERS INC.
|
|
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By:
|
/s/
Xxxxxxx Xxxxxxxx
|
|
|
Authorized
Representative
|
||
On
behalf
of each of the Initial Purchasers
