Exhibit 4(f)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 6, 1997, among First
Union Corporation, a North Carolina corporation (the "Company"), First Union
Institutional Capital II, a Delaware statutory business trust (the "Trust"), and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as the initial purchaser (the "Initial
Purchaser") of the 7.85% Capital Securities of the Trust, which are guaranteed
by the Company.
1. CERTAIN DEFINITIONS.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "ADMINISTRATORS" shall mean the Administrators named under the
Trust Agreement.
(b) "CAPITAL SECURITIES" shall mean the 7.85% Capital Securities,
Liquidation Amount $1,000 per Capital Security, to be issued under the
Trust Agreement and sold to the Initial Purchaser, and securities issued in
exchange therefor, other than Debentures, or in lieu thereof pursuant to
the Trust Agreement.
(c) "CLOSING DATE" shall mean the date on which the Capital Securities
are initially issued.
(d) "COMMISSION" shall mean 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.
(e) "DEBENTURES" shall mean the 7.85% Junior Subordinated Deferrable
Interest Debentures due January 1, 2027 of the Company to be issued under
the Indenture, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
(f) "EFFECTIVE TIME", in the case of (i) an Exchange Offer, shall mean
the time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration effective or as of which the Shelf
Registration otherwise becomes effective.
(g) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
(h) "EXCHANGE OFFER" shall have the meaning assigned thereto in Section
2(a) hereof.
(i) "EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning
assigned thereto in Section 2(a) hereof.
(j) "EXCHANGE REGISTRATION" shall have the meaning assigned thereto in
Section 3(f) hereof.
(k) "EXCHANGE SECURITIES" shall have the meaning assigned thereto in
Section 2(a) hereof.
(l) "GUARANTEE" shall mean the guarantee of the Capital Securities by
the Company under the Guarantee Agreement, dated as of January 6, 1997,
between the Company and Wilmington Trust Company, as Guarantee Trustee.
(m) The term "HOLDER" shall mean the Initial Purchaser for so long as
it owns any Registrable Securities, and such of its respective successors
and assigns who acquire Registrable Securities, directly or indirectly,
from such person or from any successor or assign of such person, in each
case for so long as such person owns any Registrable Securities.
(n) "INDENTURE" shall mean the Indenture, dated as of November 27,
1996, between the Company and Wilmington Trust Company, as Trustee, as the
same shall be amended from time to time.
(o) "LIQUIDATION AMOUNT" shall mean the stated amount of $1,000 per
Trust Security.
(p) The term "PERSON" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
(q) "REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED,
HOWEVER, that such Securities shall cease to be Registrable Securities when
(i) in the circumstances contemplated by Section 2(a) hereof, such
Securities have been exchanged for Exchange Securities in an Exchange Offer
as contemplated in Section 2(a) (provided that any Exchange Securities
received by a broker-dealer in an Exchange Offer in exchange for
Registrable Securities that were not acquired by the broker-dealer directly
from the Company will also be Registerable Securities through and including
the earlier of the 180th day after the Exchange Offer is completed or such
time as such broker-dealer no longer owns such Exchange Securities); (ii)
in the circumstances contemplated by Section 2(b) hereof, a registration
statement registering such Securities under the Securities Act has been
declared or becomes effective and such Securities have been sold or
otherwise transferred by the holder thereof pursuant to such effective
registration statement; (iii) such Securities are sold pursuant to Rule 144
under circumstances in which any legend borne by such Securities relating
to restrictions on transferability thereof, under the Securities Act or
otherwise, is removed or such Securities are eligible to be sold pursuant
to paragraph (k) of Rule 144; or (iv) such Securities shall cease to be
outstanding.
(r) "REGISTRATION DEFAULT" shall have the meaning assigned thereto in
Section 2(c) hereof.
(s) "REGISTRATION DEFAULT INTEREST" shall have the meaning assigned
thereto in Section 2(c) hereof.
(t) "REGISTRATION DEFAULT DISTRIBUTIONS" shall have the meaning
assigned thereto in Section 2(c).
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(u) "REGISTRATION EXPENSES" shall have the meaning assigned thereto in
Section 4 hereof.
(v) "RESALE PERIOD" shall have the meaning assigned thereto in Section
2(a) hereof.
(w) "RESTRICTED HOLDER" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business
or (iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities.
(x) "RULE 144," "RULE 405" AND "RULE 415" shall mean, in each case,
such rule promulgated under the Securities Act.
(y) "SECURITIES" shall mean, collectively, the Capital Securities, the
Guarantee and the Debentures.
(z) "SECURITIES ACT" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(aa) "SHELF REGISTRATION" shall have the meaning assigned thereto in
Section 2(b) hereof.
(ab) "TRUST AGREEMENT" shall mean the Amended and Restated Trust
Agreement, dated as of January 6, 1997, among the Company, the Depositor,
Wilmington Trust Company, as Property Trustee, and Wilmington Trust
company, as Delaware Trustee.
(ac) "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939,
or any successor thereto, as the same shall be amended from time to time.
(ad) "TRUST SECURITIES" shall mean collectively the Capital Securities
and the Common Securities to be issued under the Trust Agreement to the
Company.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Registration Rights Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Registration Rights Agreement as
a whole and not to any particular Section or other subdivision. Unless the
context otherwise requires, any reference to a statute, rule or regulation
refers to the same (including any successor statute, rule or regulation thereto)
as it may be amended from time to time.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, the Company and the Trust
agree to use their reasonable best efforts to file under the Securities Act
within 150 days after the Closing Date, a registration statement (the "Exchange
Offer Registration Statement") relating to an offer to exchange (the "Exchange
Offer") any and all of the Securities for a like aggregate amount of capital
securities issued by the Trust and guaranteed by the Company and underlying
junior
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subordinated interest debentures of the Company, which capital securities,
guarantee and debentures are identical to the Capital Securities, the Guarantee
and the Debentures, respectively (and are entitled to the benefits of trust
indentures which have been qualified under the Trust Indenture Act) except that
they have been registered pursuant to an effective registration statement under
the Securities Act, do not contain restrictions on transfers and do not contain
provisions for the additional interest and additional distributions contemplated
in Section 2(c) below (such new securities hereinafter called "Exchange
Securities"). The Company and the Trust agree to use their reasonable best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Securities Act within 180 days after the Closing Date. The Exchange
Offer will be registered under the Securities Act on the appropriate form and
will comply with all applicable tender offer rules and regulations under the
Exchange Act. The Company and the Trust further agree to use their reasonable
best efforts to commence and complete the Exchange Offer promptly after the
Exchange Offer Registration Statement has become effective, hold the Exchange
Offer open for at least 30 days and exchange Exchange Securities for all
Securities that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to have been
completed only if the Exchange Securities received by holders other than
Restricted Holders in the Exchange Offer for Securities are, upon receipt,
transferable by each such holder without restriction under the Securities Act
and the Exchange Act and without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United States of
America. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company and the Trust having exchanged the Exchange
Securities for all outstanding Securities pursuant to the Exchange Offer and
(ii) the Company having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Securities that have been properly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that is at
least 30 days following the commencement of the Exchange Offer. The Company and
the Trust, agree (x) to include in the registration statement a prospectus for
use in connection with any resales of Exchange Securities by a holder that is a
broker-dealer, other than resales of Exchange Securities received by a
broker-dealer pursuant to the Exchange Offer in exchange for Registrable
Securities acquired by such broker-dealer directly from the Trust, and (y) to
keep the Exchange Offer Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of (i) either (a) the expiration of
the 180th day after the Exchange Offer has been completed or (b) in the event
the Company and the Trust have at any time notified any broker-dealers pursuant
to Section 3(f)(iii) hereof, the day beyond the 180th day after the Exchange
Offer has been completed that reflects an additional period of days equal to the
number of days during all of the periods from and including the dates the
Company and the Trust give notice pursuant to Section 3(f)(iii)(F) hereof to and
including the date when broker-dealers receive an amended or supplemented
prospectus necessary to permit resales of Exchange Securities or to and
including the date on which the Company and the Trust give notice that the
resale of Exchange Securities under the Exchange Offer Registration Statement
may resume or (ii) such time as such broker-dealers no longer own any
Registrable Securities. With respect to such registration statement, each
broker-dealer that holds Exchange Securities received in an Exchange Offer in
exchange for Registerable Securities not acquired by it directly from the
Company shall have the benefit of the rights of indemnification and contribution
set forth in Section 6 hereof.
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(b) If (i) prior to the consummation of the Exchange Offer existing
applicable law or Commission interpretations are changed such that the capital
securities, related guarantee of the Company and underlying debentures of the
Company to be received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities Act,
(ii) the Exchange Offer Registration Statement is not declared effective within
180 days of the Closing Date, (iii) the Company has received an opinion of
counsel, rendered by a law firm having a recognized national tax practice, to
the effect that, as a result of the consummation of the Exchange Offer, there is
more than an insubstantial risk that (a) the Trust is, or will be, subject to
United States federal income tax with respect to income received or accrued on
the Debentures, (b) interest payable by the Company on the Debentures is not, or
will not be, deductible by the Company, in whole or in part, for United States
federal income tax purposes, or (c) the Trust is, or will be, subject to more
than a DE MINIMIS amount of other taxes, duties or other governmental charges,
then in addition to or in lieu of conducting the Exchange Offer contemplated by
Section 2(a), the Company and the Trust shall file under the Securities Act as
promptly as practicable a "shelf" registration statement 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 or any similar rule
that may be adopted by the Commission (the "Shelf Registration"). The
Administrators will promptly deliver to the holders of the Capital Securities,
the Property Trustee and the Delaware Trustee, or the Company will promptly
deliver to the holders of the Debentures, if not the Trust, written notice that
the Company and the Trust will be complying with the provisions of this Section
2(b). The Company and the Trust agree to use their reasonable best efforts to
cause the Shelf Registration to become or be declared effective and to keep such
Shelf Registration continuously effective for a period ending on the earlier of
(i) either (x) the third anniversary of the Closing Date or (y) in the event the
Company and the Trust have at any time suspended the use of the prospectus
contained in the Shelf Registration pursuant to Section 3(c) hereof, the date
beyond the third anniversary of the Closing Date that reflects an additional
period of days equal to the number of days during all of the periods from and
including the dates the Company and the Trust give notice of such suspension
pursuant to Section 3(c) to and including the date when holders of Registrable
Securities receive an amended or supplemented prospectus necessary to permit
resales as Registrable Securities under the Registration Shelf or to and
including the date on which the Company and Trust give notice that the resale to
Registrable Securities may resume or (ii) such time as there are no longer any
Registrable Securities outstanding. The Company and the Trust further agree to
supplement or make amendments to the Shelf Registration, as and when required by
the rules, regulations or instructions applicable to the registration form used
by the Company and the Trust for such Shelf Registration or by the Securities
Act or rules and regulations thereunder for shelf registration, and the Company
and the Trust agree to furnish to the holders of the Registrable Securities
copies of any such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c) If the Company or the Trust fail to comply with this Registration
Rights Agreement or if the Exchange Offer Registration Statement or the Shelf
Registration Statement fails to become effective (any such event a "Registration
Default"), then, as liquidated damages, registration default interest (the
"Registration Default Interest") shall become payable in respect of the
Debentures, and corresponding registration default Distributions (the
"Registration Default Distributions"), shall become payable on the Trust
Securities as follows:
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(i) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is filed with the Commission on or prior to
the 150th day after the Closing Date or (B) notwithstanding that the
Company and the Trust have consummated or will consummate an Exchange
Offer, the Company and the Trust are required to file a Shelf Registration
and such Shelf Registration is not filed on or prior to the date required
by this Registration Rights Agreement, then commencing on the day after
either such required filing date, Registration Default Interest shall
accrue on the principal amount of the Debentures, and Registration Default
Distributions shall accumulate on the Liquidation Amount of the Trust
Securities, each at a rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration is declared effective by the Commission on or prior to
the 30th day after the applicable required filing date or (B)
notwithstanding that the Company and the Trust have consummated or will
consummate an Exchange Offer, the Company and the Issuer are required to
file a Shelf Registration and such Shelf Registration is not declared
effective by the Commission on or prior to the 30th day after the date such
Shelf Registration was required to be filed, then commencing on the 31st
day after the applicable required filing date, Registration Default
Interest shall accrue on the principal amount of the Debentures, and
Registration Default Distributions shall accumulate on the Liquidation
Amount of the Trust Securities, each at a rate of 0.25% per annum; or
(iii) if (A) the Trust and the Company have not exchanged Exchange
Securities for all Securities validly tendered, in accordance with the
terms of the Exchange Offer on or prior to the 30th day after the date on
which the Exchange Offer Registration Statement was declared effective or
(B) if applicable, the Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time prior to the
third anniversary of the Closing Date (other than after such time as there
are no longer any Registrable Securities), then Registration Default
Interest shall accrue on the principal amount of Debentures, and
Registration Default Distributions shall accumulate on the Liquidation
Amount of the Trust Securities, each at a rate of 0.25% per annum
commencing on (x) the 31st day after such effective date, in the case of
(A) above, or (y) the day such Shelf Registration ceases to be effective in
the case of (B) above;
PROVIDED, HOWEVER, that neither the Registration Default Interest rate on the
Debentures, nor the Registration Default Distributions rate on the Liquidation
Amount of the Trust Securities, shall exceed in the aggregate 0.25% per annum;
PROVIDED, FURTHER, HOWEVER, that (1) upon the filing of the Exchange Offer
Registration Statement or a Shelf Registration (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration (in the case of clause (ii) above), or (3) upon the
exchange of Exchange Securities for all securities tendered (in the case of
clause (iii) (A) above), or upon the effectiveness of the Shelf Registration
which had ceased to remain effective (in the case of clause (iii) (B) above),
Registration Default Interest on the Debentures, and Registration Default
Distributions on the Liquidation Amount of the Trust Securities as a result of
such clause (or the relevant subclause thereof), as the case may be, shall cease
to accrue.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein
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to any post-effective amendment to a registration statement shall be deemed to
include any document incorporated therein by reference as of a time after such
Effective Time.
(e) Notwithstanding any other provisions of this Registration Rights
Agreement, in the event that Debentures are distributed to holders of Capital
Securities in liquidation of the Trust pursuant to the Trust Agreement (a) all
references in this Section 2 and Section 3 to Securities, Registrable Securities
and Exchange Securities shall not include the Capital Securities and Guarantee
or Capital Securities and Guarantee issued or to be issued in exchange therefor
in the Exchange Offer, (ii) all requirements for action to be taken by the Trust
in this Section 2 and Section 3 shall cease to apply and all requirements for
action to be taken by the Company in this Section 2 and Section 3 shall apply to
Debentures and Debentures issued or to be issued in exchange therefor in the
Exchange Offer.
3. REGISTRATION PROCEDURES.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company and the Trust shall qualify the
Indenture (if not already qualified), the Trust Agreement and the Guarantee
under the Trust Indenture Act of 1939.
(b) In connection with the Company's and the Trust's obligations with
respect to the Shelf Registration, if applicable, the Company and the Trust
shall, as soon as reasonably practicable (or as otherwise specified herein):
(i) prepare and file with the Commission a registration statement with
respect to the Shelf Registration on any form which may be utilized by the
Trust and the Company and which shall permit the disposition of the
Registrable Securities in accordance with the intended method or methods
thereof, as specified in writing by the holders of the Registrable
Securities, and use its reasonable best efforts to cause such registration
statement to become effective as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of
such registration statement for the period specified in Section 2(b) hereof
and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such registration
statement, and furnish to the holders of the Registrable Securities copies
of any such supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(iii) comply, as to all matters within the Company's and the Trust's
control, with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof provided for in such registration
statement;
(iv) provide to any of (A) the holders of the Registrable Securities to
be included in such registration statement, (B) the underwriters (which
term, for purposes of this Exchange and
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Registration Rights Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act), if
any, thereof, (C) the sales or placement agent, if any, therefor, (D)
counsel for such underwriters or agent and (E) not more than one counsel
for all the holders of such Registrable Securities who so request of the
Company in writing the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with
the Commission and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2(b), make
available at reasonable times at the Company's principal place of business
or such other reasonable place for inspection by the persons referred to in
Section 3(b)(iv) who shall certify to the Company and the Trust that they
have a current intention to sell the Registrable Securities pursuant to the
Shelf Registration such financial and other information and books and
records of the Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
PROVIDED, HOWEVER, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company in writing as being
confidential, until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court or
other governmental agency or body having jurisdiction over the matter
(subject to the requirements of such order, and only after such person
shall have given the Company prompt prior written notice of such
requirement), or (C) such information is required to be set forth in such
registration statement or the prospectus included therein or in an
amendment to such registration statement or an amendment or supplement to
such prospectus in order that such registration statement, prospectus,
amendment or supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(vi) promptly notify the selling holders of Registrable Securities, the
sales or placement agent, if any, therefor and the managing underwriter or
underwriters, if any, thereof and confirm such advice in writing, (A) when
such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Company or the Trust contemplated by Section 3(b)(xv) or Section 5
cease to be true and correct in all material respects, (E) of the receipt
by the Company or the Trust of any notification with respect to the
suspension of the qualification of the Registrable
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Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vii) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, any
placement or sales agent or any holder of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent or
such holder specifies should be included therein relating to the terms of
the sale of such Registrable Securities, including information with respect
to the principal amount of Registrable Securities being sold by such holder
or agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities to
be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(ix) furnish to each holder of Registrable Securities, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(b)(iv) an executed copy (or, in
the case of a holder of Registrable Securities, a conformed copy) of such
registration statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of a holder of Registrable
Securities, upon request) and documents incorporated by reference therein)
and such number of copies of such registration statement (excluding
exhibits thereto and documents incorporated by reference therein unless
specifically so requested by such holder, agent or underwriter, as the case
may be) and of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder, and such other documents, as such holder, agent,
if any, and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities owned
by such holder, offered or sold by such agent or underwritten by such
underwriter and to permit such holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the Company and
the Trust hereby consent to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto
by each such holder and by any such agent and underwriter, in each case in
the form most recently
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provided to such person by the Company or the Trust, in connection with the
offering and sale of the Registrable Securities covered by the prospectus
(including such preliminary and summary prospectus) or any supplement or
amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement under
such securities laws or blue sky laws of such United States jurisdictions
as any holder of such Registrable Securities and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period the Shelf
Registration is required to remain effective under Section 2(b) above and
for so long as may be necessary to enable any such holder, agent or
underwriter to complete its distribution of Securities pursuant to such
registration statement but in any event not later than the date through
which the Company and the Trust are required to keep the Shelf Registration
Effective pursuant to Section 2(b) and (C) take any and all other actions
as may be reasonably requested to enable each such holder, agent, if any,
and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; PROVIDED, HOWEVER, that
neither the Company nor the Trust shall be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction wherein it would
not otherwise be required to qualify but for the requirements of this
Section 3(b)(x), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(xi) use its reasonable best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local,
which may be required to be obtained by the Company or the Trust to effect
the Shelf Registration or the offering or sale in connection therewith or
to enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall be printed, lithographed or engraved, or produced
by any combination of such methods, and which shall not bear any
restrictive legends, except as may be required by applicable law; and, in
the case of an underwritten offering, enable such Registrable Securities to
be in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
the Registrable Securities;
(xiii) provide a CUSIP number for all applicable Registrable
Securities, not later than the Effective Time;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provision agreed to
by the Company relating to indemnification and contribution, and take such
other actions in connection therewith as any holders of Registrable
Securities aggregating at least 33 1/3% in aggregate principal amount of
the Registrable Securities at the time outstanding shall reasonably request
in order to expedite or facilitate
-10-
the disposition of such Registrable Securities; PROVIDED, that the Company
and the Trust shall not be required to enter into any such agreement more
than once with respect to all of the Registrable Securities and may delay
entering into such agreement until the consummation of any underwritten
public offering which the Company shall have then undertaken;
(xv) whether or not an agreement of the type referred to in Section
(3)(b)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent or any other entity,
(A) make such representations and warranties to the holders of such
Registrable Securities and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof in form, substance and scope as are
customarily made by the Company in connection with an offering of debt
securities pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf Registration; (B)
obtain an opinion of counsel to the Company and an opinion of counsel to
the Trust in each case in customary form and covering such matters, of the
type customarily covered by such an opinion, and in the case of the Company
as customarily given in public offerings of the Company's debt securities
as the managing underwriters, if any, or as any holders of at least 25% in
aggregate principal amount of the Registrable Securities at the time
outstanding may reasonably request, addressed to such holder or holders and
the placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such registration statement
(and if such registration statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto); (C) obtain a
"cold comfort" letter or letters from the independent certified public
accountants of the Company addressed to the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration statement which includes
audited financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus (and, if
such registration statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such
registration statement or post-effective amendment to such registration
statement which includes unaudited or audited financial statements as of a
date or for a period subsequent to that of the latest such statements
included in such prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such letter or letters to be in
customary form and covering such matters of the type customarily covered by
letters of such type in public offerings of debt securities of the Company;
(D) deliver such documents and certificates, including officers' or
trustees' or Administrators' certificates, as applicable, as may be
reasonably requested by any holders of at least 25% in aggregate principal
amount of the Registrable Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in Section
5(a) hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by the Company or the Trust, as applicable; and (E) undertake
such obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
-11-
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Company and/or the Trust to amend or waive any provision of
this Registration Rights Agreement pursuant to Section 9(h) hereof and of
any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as
the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as
a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Conduct Practice and the
By-Laws of the National Association of Securities Dealers, Inc. ("NASD") or
any successor thereto, as amended from time to time) thereof, whether as a
holder of such Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such Rules and
By-Laws, including by (A) if such Rules shall so require, permitting a
"qualified independent underwriter" (as defined in such Schedule (or any
successor thereto)) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Conduct of
the NASD; and
(xviii) make generally available to its security holders as soon as
practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company or the Trust, such
obligation shall be subject to the provision of such information.
(c) In the event that the Company and the Trust would be required, pursuant
to Section 3(b)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company and the Trust shall promptly prepare
and furnish to each such holder, to each placement or sales agent, if any, and
to each such underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and shall not 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
in light of the circumstances then existing. Each holder of Registrable
Securities agrees that upon receipt of any notice from the Company or the Trust,
pursuant to Section 3(b)(vi)(F) hereof, such holder shall forthwith discontinue
the disposition of Registrable Securities pursuant to the registration statement
applicable to such Registrable Securities until such holder (i) shall have
received copies
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of such amended or supplemented prospectus and, if so directed by the Company or
the Trust, such holder shall deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such holder's possession
of the prospectus covering such Registrable Securities at the time of receipt of
such notice or (ii) shall have received notice from the Company or the Trust
that the disposition of Registrable Securities pursuant to the Shelf
Registration may continue.
(d) The Company and the Trust may require each holder of Registrable
Securities as to which any registration pursuant to Section 2(b) is being
effected to furnish to the Company such information regarding such holder and
such holder's intended method of distribution of such Registrable Securities as
the Company and the Trust may from time to time reasonably request in writing,
but only to the extent that such information is required in order to comply with
the Securities Act. Each such holder agrees to notify the Company and the Trust
as promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to the Company and the Trust or of the occurrence of
any event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such holder or such holder's intended method of disposition of such
Registrable Securities or omits to state any material fact regarding such holder
or such holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company and the Trust any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such holder or the disposition of such
Registrable Securities, 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 in light of the circumstances then existing.
(e) Until the expiration of three years after the Closing Date, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule 144)
to, resell any of the Capital Securities or Debentures that have been reacquired
by any of them except pursuant to an effective registration statement under the
Act.
(f) In connection with the Company's and the Trust's obligations with
respect to the registration of Exchange Securities as contemplated by Section
2(a) (the "Exchange Registration"), if applicable, the Company and the Trust
shall, as soon as reasonably practicable (or as otherwise specified):
(i) prepare and file with the Commission such amendments and
supplements to the Exchange Offer Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness thereof for the periods and purposes contemplated in Section
2(a) hereof and as may be required by the applicable rules and regulations
of the Commission and the instructions applicable to the form of the
Exchange Offer Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies of the
prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission
-13-
thereunder, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of
Exchange Securities;
(ii) promptly notify each broker-dealer that has requested or received
copies of the prospectus included in the Exchange Offer Registration
Statement, and confirm such advice in writing, (A) when the Exchange Offer
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and,
with respect to the Exchange Offer Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to the Exchange Offer Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Exchange Offer Registration Statement or the initiation or threatening of
any proceedings for that purpose, (D) if at any time the representations
and warranties of the Company and/or the Trust contemplated by Section 5
cease to be true and correct in all material respects, (E) of the receipt
by the Company or the Trust of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale in any
United States jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the Resale Period
when a prospectus is required to be delivered under the Securities Act,
that the Exchange Offer Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(iii) in the event that the Company and the Trust would be required,
pursuant to Section 3(f)(ii)(F) above, to notify any broker-dealers holding
Exchange Securities, promptly prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and shall not 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 in light of the circumstances then
existing or notify such broker-dealers that the date of Exchange Securities
pursuant to the Exchange Offer Registration Statement may continue.
(iv) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Exchange Offer Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(v) use its reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers,
-14-
sales and dealings therein in such jurisdictions until the expiration of
the Resale Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer holding
Exchange Securities to consummate the disposition thereof in such
jurisdictions; PROVIDED, HOWEVER, that neither the Company nor the Trust
shall be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(f)(v), (2) consent to
general service of process in any such jurisdiction or (3) make any changes
to its certificate of incorporation or by-laws or any agreement between it
and its stockholders;
(vi) use its reasonable best efforts to obtain the consent or approval
of each United States governmental agency or authority, whether federal,
state or local, which may be required to be obtained by the Company or the
Trust to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers during the
Resale Period;
(vii) provide a CUSIP number for all applicable Exchange Securities,
not later than the applicable Effective Time;
(viii) make generally available to its security holders as soon as
practicable but no later than eighteen months after the effective date of
such registration statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company or the Trust, such
obligation shall be subject to the provision of such information.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's and the
Trust's performance of or compliance with this Registration Rights Agreement,
including (a) all Commission and any NASD registration and filing fees and
expenses, (b) all fees and expenses in connection with the qualification of the
Securities or Exchange Securities for offering and sale under the State
securities and blue sky laws referred to in Section 3(b)(x) and Section 3(f)(v)
hereof, including reasonable fees and disbursements of one counsel for the
placement or sales agent or underwriters in connection with such qualifications,
(c) all expenses relating to the preparation, printing, distribution and
reproduction of each registration statement required to be filed hereunder, each
prospectus included therein or prepared for distribution pursuant hereto, each
amendment or supplement to the foregoing, the certificates representing the
Securities and all other documents relating hereto, (d) messenger and delivery
expenses, (e) fees and expenses of the Trustee under the Indenture, the Property
Trustee and Debenture Trustee under the Trust Agreement and the Guarantee
Trustee under the Guarantee and of any escrow agent or custodian, (f) internal
expenses (including all salaries and expenses of the Company's officers and
employees performing legal or accounting duties), (g) fees, disbursements and
expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance) and (h) reasonable fees,
-15-
disbursements and expenses of one counsel for the holders of Registrable
Securities retained in connection with a Shelf Registration, as selected by the
holders of at least a majority in aggregate principal amount of the Registrable
Securities being registered, and fees, expenses and disbursements of any other
persons, including special experts, retained by the Company in connection with
such registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by any holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. REPRESENTATIONS AND WARRANTIES.
Each of the Company and the Trust represents and warrants to, and agrees
with, the Initial Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(f) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and will not
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 at all times subsequent to the Effective Time
when a prospectus would be required to be delivered under the Securities
Act, other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(b)(vi)(F) or Section
3(f)(ii)(F) hereof until (ii) such time as the Company furnishes an amended
or supplemented prospectus pursuant to Section 3(c) or Section 3(f)(iii)
hereof, each such registration statement, and each prospectus (including
any summary prospectus) contained therein or furnished pursuant to Section
3(b) or Section 3(f) hereof, as then amended or supplemented, will conform
in all material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and will not 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 in the
light of the circumstances then existing; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company and the Trust by a holder of Registrable Securities
expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as
-16-
the case may be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
none of such documents will contain or contained an untrue statement of a
material fact or will omit or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company and the
Trust by a holder of Registrable Securities expressly for use therein.
(c) The compliance by the Company and the Trust with all of the
provisions of this Registration Rights Agreement and the consummation of
the transactions herein contemplated will not constitute a breach of or
default under, the corporate charter or by-laws of the Company, or the
Trust Agreement of the Trust, or any material agreement, indenture or
instrument relating to indebtedness for money borrowed to which the Company
or to the best knowledge of the Company, the Trust is a party or, to the
best knowledge of the Company, the Trust, as applicable, any law, order,
rule, regulation or decree of any court or governmental agency or authority
located in the United States having jurisdiction over the Company or any
property of the Company or the Trust or any property of the Trust, as
applicable; and, to the best knowledge of the Company and the Trust, no
consent, authorization or order of, or filing or registration with, any
court or governmental agency or authority is required for the consummation
by the Company or the Trust, as applicable, of the transactions
contemplated by this Registration Rights Agreement, except the registration
under the Securities Act contemplated hereby, qualification of the
Indenture, the Guarantee and the Trust Agreement under the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or "blue sky"
laws.
(d) This Registration Rights Agreement has been duly authorized,
executed and delivered by the Company or the Trust, as applicable.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY AND THE TRUST. Upon the registration of
the Registrable Securities pursuant to Section 2(a) or 2(b) hereof, and in
consideration of the agreements of the Initial Purchaser contained herein, and
as an inducement to the Initial Purchaser to purchase the Capital Securities,
each of the Company and the Trust shall, and it hereby agrees jointly and
severally to, indemnify and hold harmless each of the holders of Registrable
Securities to be included in such registration, and each person who participates
as a placement or sales agent or as an underwriter in any offering or sale of
such Registrable Securities and each person who controls any such person against
any losses, claims, damages or liabilities, joint or several, to which such
holder, agent or underwriter may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law 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 under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company or the Trust to any such holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state
-17-
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading and each of the Company and the Trust shall,
and it hereby agrees jointly and severally to, reimburse each such holder, such
agent and such underwriter for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company and the Trust
shall not be liable to any such 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 registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company and the Trust by holders of Registrable
Securities expressly for use therein. This indemnity agreement will be in
addition to any liability which the Company or the Trust may otherwise have.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS. The
Company and the Trust may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2(b) hereof
and to entering into any underwriting agreement with respect thereto, that the
Company and the Trust shall have received an undertaking reasonably satisfactory
to it from the holder of such Registrable Securities and from each underwriter
named in any such underwriting agreement, severally and not jointly, to
indemnify and hold harmless the Company and the Trust, each of the Company's
directors, and each person who controls the Company or the Trust within the
meaning of either the Securities Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company and the Trust, but only with reference
to written information furnished to the Company and the Trust by or on behalf of
such person specifically for use in any registration statement, or any
preliminary or final or summary prospectus contained therein or any amendment or
supplement thereto. This indemnity agreement will be in addition to any
liability which any such person may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 6(a)
or (b) of notice of the commencement of any action, such indemnified party will,
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 will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under Section 6(a) or (b). In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that, if the defendants in 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, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under Section
8(a) or (b) for any
-18-
legal or other expenses subsequently incurred by such indemnified party (other
than reasonable costs of investigation) in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate national counsel, approved by the Representatives, representing the
indemnified parties who are parties to such action), (ii) 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
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) CONTRIBUTION. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party 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 fault of the indemnifying party and the
indemnified party 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 party 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 party,
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 contributions pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them 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 in this Section 6(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. Notwithstanding the provisions of this Section 6(d), no holder shall
be required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) 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, and no underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d)
-19-
to contribute shall be several in proportion to the principal amount of
Registrable Securities registered or underwritten, as the case may be, by them
and not joint.
(e) The obligations of the Company and the Trust under this Section 6 shall
be in addition to any liability which the Company and the Trust may otherwise
have and shall extend, upon the same terms and conditions, to each officer,
director and partner of each holder, agent and underwriter and each person, if
any, who controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his consent, is named in
any registration statement as about to become a director of the Company), to
each Trustee and Administrator under the Trust Agreement and to each person, if
any, who controls the Company and the Trust within the meaning of the Securities
Act.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by the
holders of at least a majority in aggregate principal amount of the Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Company.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144.
The Company covenants to the holders of Registrable Securities that the
Company shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, and shall take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the Commission.
Upon the request of any holder of Registrable Securities in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
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9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Company and the Trust
represents, warrants, covenants and agrees that it has not granted, and shall
not grant, registration rights with respect to Registrable Securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at First Union Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: General Counsel; if to the Trust, to it at Wilmington
Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration; and if to a
holder, to the address of such holder set forth in the security register or
other records of the Trust or the Company, as the case may be, or to such other
address as the Company, the Trust or any such holder may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(d) PARTIES IN INTEREST. 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.
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 deemed a party hereto for all purposes
and such Registrable Securities shall be held subject to all of the terms of
this Registration Rights Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by and to perform, all of the
applicable terms and provisions of this Registration Rights Agreement.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Registration Rights
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
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(F) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Registration Rights Agreement are inserted for convenience
only, do not constitute a part of this Registration Rights Agreement and shall
not affect in any way the meaning or interpretation of this Registration Rights
Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Registration Rights Agreement and
the other writings referred to herein (including the Trust Agreement, the
Guarantee and the Indenture) or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Registration Rights Agreement may be amended and the observance of
any term of this Registration Rights Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only by a
written instrument duly executed by the Company, the Trust and the holders of at
least a majority in aggregate principal amount of the Registrable Securities at
the time outstanding. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Registrable Securities or is
delivered to such holder.
(i) INSPECTION. For so long as this Registration Rights Agreement shall be
in effect, this Registration Rights Agreement and a complete list of the names
and addresses of all the holders of Registrable Securities shall be made
available for inspection and copying on any business day by any holder of
Registrable Securities for proper purposes only (which shall include any purpose
related to the rights of the holders of Registrable Securities under the
Securities, the Indenture and this Agreement) at the offices of the Company at
the address thereof set forth in Section 9(c) above, at the office of the
Property Trustee or at the office of the Trustee under the Indenture.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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Agreed to and accepted as of the date referred to above.
FIRST UNION INSTITUTIONAL CAPITAL II
By: \S\ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
FIRST UNION CORPORATION
By: \S\ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: \S\ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
Name:
Title:
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