EXHIBIT 4.7
February 10, 1997
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
DEUTSCHE XXXXXX XXXXXXXX INC.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
World Financial Center-North tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Integon Capital I, a statutory business trust created pursuant
to a Trust Agreement, as amended and restated (the "Trust Agreement"),
under the laws of the state of Delaware (the "Trust"), proposes to issue
and sell to certain purchasers (the "Initial Purchasers"), upon the terms
set forth in a purchase agreement, dated February 5, 1997 (the "Purchase
Agreement"), $100,000,000 liquidation amount of 10 3/4% Capital
Securities, Series A (liquidation amount $1,000 per Capital Security)
(the "Capital Securities"). Capitalized terms used but not specifically
defined herein are defined in the Purchase Agreement.
The Trust exists for the sole purpose of issuing its trust
interests and investing the proceeds thereof in 10 3/4% Junior
Subordinated Deferable Interest Debentures, Series A (the "Junior
Subordinated Debentures") to be issued by Integon Corporation, a Delaware
corporation (the "Company"). The Company has, through a Guarantee
Agreement, the Trust Agreement, the Junior Subordinated Debentures, the
Indenture under which the Junior Subordinated Debentures are issued (the
"Indenture") and an Expense Agreement (the "Guarantee" and, together with
the Capital Securities and the Junior Subordinated Debentures, the
"Securities") guaranteed certain obligations in respect of the Capital
Securities. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company and the Trust agree with you, for the benefit of
the holders of the Capital Securities (including the Initial Purchasers)
(the "Holders"), as follows:
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XXXXXXX, XXXXX & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
1. REGISTERED EXCHANGE OFFER. The Company and the Trust shall use
their best efforts to file with the Commission within 90 calendar days
after the Closing Date a registration statement (the "Exchange Offer
Registration Statement") on an appropriate form under the Securities Act
with respect to a proposed offer (the "Registered Exchange Offer") to the
Holders to issue and deliver to such Holders, in exchange for (a) the
Capital Securities a like amount of a new series of capital securities of
the Trust (the "Exchange Capital Securities") with terms substantially
identical to those of the Capital Securities (except that the Exchange
Capital Securities will not contain terms with respect to transfer
restrictions under the Securities Act, and will be entitled, to the
extent applicable, to the benefits of trust indentures which have been
qualified under the Trust Indenture Act), (b) the Guarantee the Company's
guarantee in respect of the Exchange Capital Securities (the "Exchange
Guarantee") with terms substantially identical to those of the Guarantee
(except that the Exchange Guarantee will not contain terms with respect
to transfer restrictions under the Securities Act) and (c) the Junior
Subordinated Debentures a like amount of a new series of junior
subordinated debentures (the "Exchange Junior Subordinated Debentures"
and, together with the Exchange Capital Securities and the Exchange
Guarantee, the "Exchange Securities") with terms substantially identical
to those of the Junior Subordinated Debentures (except that the Exchange
Junior Subordinated Debentures will not contain terms with respect to
transfer restrictions under the Securities Act, and will be entitled, to
the extent applicable, to the benefits of trust indentures which have
been qualified under the Trust Indenture Act), shall use their best
efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act within 120 calendar days of the
Closing Date and shall keep the Exchange Offer Registration Statement
effective for not less than 30 calendar days (or longer, if required by
applicable law) after the date notice of the Exchange Offer is mailed to
the Holders (such period being called the "Exchange Offer Registration
Period"). The Exchange Securities will be issued under the Indenture or
an indenture (the "Exchange Securities Indenture") between the Company
and the Debenture Trustee or such other bank or trust company reasonably
satisfactory to you, as trustee (the "Exchange Securities Trustee"), such
indenture to be identical in all material respects to the Indenture
except for the transfer restrictions relating to the Securities (as
described above).
Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Trust shall promptly commence the
Registered Exchange Offer. An exchange for purposes of clauses (i) and
(ii) of the next sentence will be deemed to have been completed only if
the Exchange Securities received by holders, other
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XXXXXXX, SACHS & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
than holders that are unable to make the representations set forth in the
penultimate paragraph of Section 1 or are referred to in clause (iv) of
Section 2 hereof, are, upon receipt, transferable by each such holder
without restriction under the Securities 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 Registration
Period. The Company and the Trust acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities
Act, (i) each Holder that is a broker-dealer electing to exchange
Securities, acquired for its own account as a result of market making
activities or other trading activities, for Exchange Securities (an
"Exchanging Dealer"), is required to deliver a prospectus containing the
information set forth in Annex A hereto on the cover, in Annex B hereto
in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section, and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any
such Exchange Securities received by such Exchanging Dealer pursuant to
the Registered Exchange Offer and (ii) if any Initial Purchaser elects to
sell Exchange Securities acquired in exchange for Securities constituting
any portion of an unsold allotment it is required to deliver a
prospectus, containing the information required by Items 507 and/or 508
of Regulation S-K under the Securities Act, as applicable, in connection
with such a sale.
In connection with the Registered Exchange Offer, the Company
and the Trust shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less that 30
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(c) utilize the services of a Depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York;
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XXXXXXX, XXXXX & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer, the Company and/or the Trust, as the case may be, shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Property Trustee for cancellation all Capital
Securities so accepted for exchange; and
(c) cause the Property Trustee promptly to authenticate and deliver
to each holder of Capital Securities, Exchange Capital Securities equal
in liquidation amount to the Capital Securities of such holder so
accepted for exchange.
The Company shall make available for a period of 180 days after
the consummation of the Registered Exchange Offer, a copy of the
prospectus forming part of the Exchange Offer Registration Statement to
any broker-dealer for use in connection with any resale of any Exchange
Securities. The Company shall 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 suspended the use of the prospectus contained
in the Exchange Offer Registration Statement pursuant to Section 4(b)
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 4(b) 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 a Resumption
Notice (as defined in Section 4(x)) or (ii) such time as such broker-
dealers no longer own any Exchange Securities whose resales by them are
subject to the prospectus delivery requirements
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XXXXXXX, SACHS & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
under the Securities Act. With respect to such registration statement,
each broker-dealer that holds Exchange Securities received in an Exchange
Offer in exchange for 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 in connection with resales of
Exchange Securities during the Resale Period.
Each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company and the Trust that at the
time of the consummation of the Registered Exchange Offer (i) any
Exchange Securities received by such Holder will be acquired in the
ordinary course of business, (ii) such Holder will have no arrangements
or understanding with any person to participate in the distribution of
the Securities or the Exchange Securities within the meaning of the
Securities Act and (iii) such Holder is not an affiliate of the Company
within the meaning of the Securities Act.
Notwithstanding any other provisions hereof, the Company and
the Trust will ensure that (i) any Exchange Offer Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities
Act and the rules and regulations thereunder, (ii) any Exchange Offer
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any prospectus
forming part of any Exchange Offer Registration Statement, and any
supplement to such prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
2. SHELF REGISTRATION. If (i) the Company and the Trust are not
required to file the Exchange Offer Registration Statement or permitted
to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy, (ii) for any reason the
Exchange Offer Registration Statement is not declared effective within
120 calendar days after 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 (x) the Trust is, or will be, within 90 days of the date of
such opinion, subject to United States federal income tax with respect to
income received or accrued on the
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XXXXXXX, XXXXX & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
Junior Subordinated Debentures or Exchange Junior Subordinated
Debentures, (y) interest payable by the Company on such Junior
Subordinated Debentures or Exchange Junior Subordinated Debentures is
not, or within 90 days of the date of such opinion, will not be,
deductible by the Company, in whole or in part, for United States federal
income tax purposes, or (z) the Trust is, or will be within 90 days of
such opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges, or (iv) any holder of Transfer
Restricted Securities notifies the Company or the Trust on or by the 20th
business day following the consummation of the Exchange Offer that (A) it
is prohibited by law or Commission policy from participating in the
Exchange Offer, (B) it may not resell the Exchange Capital Securities,
the Exchange Guarantees and the Exchange Junior Subordinated Debentures
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
or (C) it is a broker-dealer and owns Capital Securities acquired
directly from the Trust or an affiliate of the Trust, or (v) if the
Company so elects, then the following provisions shall apply:
(a) The Company and the Trust shall use their best efforts as
promptly as practicable to file with the Commission and thereafter shall
use their best efforts to cause to be declared effective a "shelf"
registration statement on an appropriate form under the Securities Act
providing for the registration of, and the sale on a con tinuous or
delayed basis by the holders of, all of the Transfer Restricted
Securities, pursuant to Rule 415 or any similar rule that may be adopted
by the Commission (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement").
(b) The Company and the Trust shall use their best efforts to keep
the Shelf Registration Statement continuously effective in order to
permit the prospectus forming part thereof to be usable by Holders for a
period ending on the earlier of (i) (x) the third anniversary of the
Closing Date, (y) the expiration of the period following the Closing Date
after which Rule 144(k) under the Securities Act generally becomes
available to non-affiliates of an issuer or (z) in the event the Company
and the Trust have at any time suspended the use of the prospectus
contained in the Shelf Registration Statement pursuant to Section 4(b)
hereof, the date beyond the earlier of the periods referred to in clauses
(x) and (y) 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
4(b) to and including the date when holders of Securities receive
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XXXXXXX, SACHS & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
an amended or supplemented prospectus necessary to permit resales of
Securities under the Shelf Registration Statement or to and including the
date on which the Company and Trust give a Resumption Notice or (ii) such
time as all of the Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or pursuant
to Rule 144 (in any such case, such period being called the "Shelf
Registration Period"). The Company and the Trust shall be deemed not to
have used their best efforts to keep the Shelf Registration Statement
effective during the requisite period if they voluntarily take any action
that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless such action,
in the opinion of the Company after consulting with legal counsel, is
required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company and
the Trust will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities
Act and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such
prospectus does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
3. LIQUIDATED DAMAGES.
(a) The parties hereto agree that the Holders of Securities
will suffer damages if the Company fails to fulfill its obligations under
Section 1 or Section 2, as applicable, and that it would not be feasible
to ascertain the extent of such damages. Accordingly, if (i) the
applicable Registration Statement is not filed with the Commission on or
prior to 90 calendar days after the Closing Date, (ii) the Exchange Offer
Registration Statement or, as the case may be, the Shelf Registration
Statement, is not declared effective within 120 calendar days after the
Closing Date, (iii) the Exchange Offer is not consummated on or prior to
30 business days after the date on which the Exchange Offer Registration
Statement was declared effective by the Commission, or (iv) the Shelf
Registration Statement is filed and declared effective within 120
calendar days after the Closing Date but shall thereafter cease to
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XXXXXXX, XXXXX & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
be effective (at any time that the Company is obligated to maintain the
effectiveness thereof) without being succeeded within 30 calendar days by
an additional Registration Statement filed and declared effective (each
such event referred to in clauses (i) through (iv), a "Registration
Default"), the Company will pay to holders of Transfer Restricted
Securities (as defined below) as liquidated damages, additional interest
in respect of the Junior Subordinated Debentures, and corresponding
distributions shall accumulate on the Liquidation Amount of Capital
Securities, at a rate of 0.25% per annum until (i) the applicable
Registration Statement is filed, (ii) the Exchange Registration Statement
is declared effective and the Exchange Offer is consummated, (iii) the
Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective, as the case may be.
Following the cure of all Registration Defaults, the accrual of
liquidated damages will cease. "Transfer Restricted Securities" means
each Capital Security, Guarantee and Junior Subordinated Debenture until
(i) the date on which such securities have been exchanged for a freely
transferable Exchange Capital Security, Exchange Guarantee and Exchange
Junior Subordinated Debenture in the Exchange Offer, (ii) the date on
which such securities have been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iii) the date on which such securities are distributed to
the public pursuant to Rule 144 under the Securities Act or are salable
pursuant to Rule 144(k) under the Securities Act. Notwithstanding
anything to the contrary in this Section 3(a), the Company shall not be
required to pay liquidated damages to the holder of Transfer Restricted
Securities if such holder: (a) failed to comply with its obligations to
make the representations in the second to last paragraph of Section 1; or
(b) failed to provide the information required to be provided by it, if
any, pursuant to Section 4(n).
(b) The Company and the Trust shall notify the Property Trustee
under the Trust Agreement immediately upon the happening of each and
every Registration Default. The Company shall pay the liquidated damages
due on the Transfer Restricted Securities by depositing with the Property
Trustee (which may not be the Company for these purposes), in trust, for
the benefit of the Holders thereof, prior to 10:00 a.m. New York City
time on the next date specified by the Trust Agreement and the Capital
Securities for the payment of cash distributions in respect of the
Capital Securities, sums sufficient to pay the liquidated damages then
due. The liquidated damages due shall be payable on each distribution
payment date specified by the Trust Agreement and the Capital Securities
to the record holder entitled to receive this distribution payment to be
made on such date. Each obligation
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XXXXXXX, SACHS & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
to pay liquidated damages shall be deemed to accrue from and including
the applicable Registration Default.
(c) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are
intended to constitute the sole damages that will be suffered by holders
of Transfer Restricted Securities by reason of the failure of (i) the
Shelf Registration Statement or the Exchange Offer Registration Statement
to be filed, (ii) the Shelf Registration Statement to be declared
effective or to remain effective, or (iii) the Exchange Offer
Registration Statement to be declared effective and the Exchange Offer to
be consummated, to the extent required by this Agreement.
4. REGISTRATION PROCEDURES. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company and the Trust shall (i) furnish to you, prior
to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that any of the Initial
Purchasers (with respect to any portion of an unsold allotment from the
original offering) are participating in the Registered Exchange Offer or
the Shelf Registration, shall use reasonable efforts to reflect in each
such document, when so filed with the Commission, such comments as you
reasonably may propose; (ii) with respect to an Exchange Offer
Registration Statement, include the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C
hereto in the "Plan of Distribution" section of the prospectus forming a
part of the Exchange Offer Registration Statement, and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and (iii) if
requested by any Initial Purchaser, include the information required by
Items 507 or 508 of Regulation S-K under the Securities Act, as
applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement.
(b) The Company and the Trust shall advise you and, in the case
of a Shelf Registration Statement, the Holders (if applicable), and, if
requested by you or any such Holder, confirm such advice in writing
(which advice pursuant to clauses (ii)-(v) hereof shall be accompanied by
an instruction to suspend the use of the prospectus until the requisite
changes have been made):
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XXXXXXX, XXXXX & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any comments by the Commission and by the Blue Sky or
securities commissioner or regulator of any state with respect thereto or
of any request by the Commission for amendments or supplements to the
Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceedings for that purpose;
(iv) of the receipt by the Company or the Trust of any
notification with respect to the suspension of the qualification of the
Securities or the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the making of
any changes in the Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment so that, as of such
date, the statements therein are not misleading and do not omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The Company and the Trust will use their best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(d) The Company and the Trust will furnish to each Holder of
Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
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XXXXXXX, SACHS & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
(e) The Company and the Trust will deliver to each Holder of
Securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may
reasonably request; and the Company and the Trust consent to the use of
the prospectus or any amendment or supplement thereto by each of the
selling Holders of Securities in connection with the offering and sale of
the Securities covered by the prospectus or any amendment or supplement
thereto.
(f) The Company and the Trust will furnish to each Exchanging
Dealer or Initial Purchaser, as applicable, which so requests, without
charge, at least one copy of the Exchange offer Registration Statement
and any post-effective amendment thereto, including financial statements
and schedules, and, if the Exchanging Dealer or Initial Purchaser, as
applicable, so requests in writing, all exhibits (including those
incorporated by reference).
(g) The Company and the Trust will, during the Exchange Offer
Registration Period or the Shelf Registration Period, as applicable,
promptly deliver to each Exchanging Dealer or Initial Purchaser, as
applicable, without charge, as many copies of the prospectus included in
such Exchange Offer Registration Statement or Shelf Registration
Statement, as applicable, and any amendment or supplement thereto as such
Exchanging Dealer or Initial Purchaser, as applicable, may reasonably
request for delivery by (i) such Exchanging Dealer in connection with a
sale of Exchange Securities received by it pursuant to the Registered
Exchange Offer or (ii) such Initial Purchaser in connection with a sale
of Exchange Securities received by it in exchange for Securities
constituting any portion of an unsold allotment; and the Company and the
Trust consent to the use of the prospectus or any amendment or supplement
thereto by any such Exchanging Dealer or Initial Purchaser, as
applicable, as aforesaid.
(h) Prior to any public offering of Securities or Exchange
Securities pursuant to any Registration Statement, the Company and the
Trust will use their best efforts to register or qualify or cooperate
with the Holders of Securities included therein and their respective
counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of
such jurisdictions as any such Holder reasonably requests in writing and
do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the Securities or Exchange
Securities covered by such Registration
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DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
Statement; provided, however, that the Company and the Trust (or any
subsidiary or affiliate of the Company) will not be required to qualify
generally to do business in any jurisdiction where they are not then so
qualified or to take any action which would subject them to general
service of process or to taxation in any such jurisdiction where they are
not then so subject.
(i) The Company and the Trust will cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing Securities or Exchange Securities to be sold
pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as Holders may
request in writing prior to delivery of Securities or Exchange Securities
pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by para graphs
(b)(ii) through (v) above during the period for which the Company and the
Trust are required to maintain an effective Registration Statement, the
Company and the Trust will promptly prepare a post-effective amendment to
the Registration Statement or a supplement to the related prospectus or
file any other required document so that, as so amended or supplemented,
the prospectus will not include an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registra
tion Statement, the Company and the Trust will provide a CUSIP number for
the Securities or Exchange Securities, as the case may be, and provide
the applicable trustee with printed certificates for the Securities or
Exchange Securities, as the case may be, in a form eligible for deposit
with The Depository Trust Company.
(l) The Company will comply with all applicable rules and
regulations of the Commission and will make generally available to its
security holders not later than 90 days after the end of the 12 month
period beginning at the end of the fiscal quarter in which the applicable
Registration Statement first became effective under the Securities Act,
an earnings statement (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act.
(m) The Company and the Trust will cause the Trust Agreement and
the Indenture or the Exchange Securities Indenture, as the case may
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DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
be, to be qualified under the Trust Indenture Act as required by
applicable law in a timely manner.
(n) The Company and the Trust may require each Holder of Securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
such Securities as the Company may from time to time reasonably request
in writing for inclusion in such Registration Statement, but only to the
extent that such information is required in order to comply with the
Securities Act or the Rules of the NASD, and the Company may exclude from
such registration the Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
(o) The Company and the Trust shall enter into such customary
agreements (including, if requested, an underwriting agreement in
customary form) and take all such other action, if any, as Holders of a
majority in aggregate liquidation amount of Capital Securities or
Exchange Capital Securities being sold or the managing underwriters (if
any) shall reasonably request in order to facilitate the disposition of
Securities pursuant to any Shelf Registration Statement.
(p) In the case of a Shelf Registration Statement, the Company
shall provide to any of (A) the holders of the securities to be included
in such registration statement, (B) the underwriters (which term, for
purposes of this Exchange and 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
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.
(q) In the case of a Shelf Registration Statement, for a reasonable
period prior to the filing thereof, the Company shall (i) make reasonably
available for inspection by the persons referred to in Section 4(p) who
shall certify to the Company and the Trust that they have a current
intention to sell the Securities pursuant to the Shelf Registration
Statement, all relevant financial and other records, pertinent corporate
documents and properties of the Company and the Subsidiaries and (ii) use
reasonable efforts to have Company's and the Subsidiaries' officers,
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XXXXXXX LYNCH, PIERCE, XXXXXX &
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directors, employees, counsel, accountants and independent auditors
supply all relevant information reasonably requested by such persons
(each, an "Inspector") in connection with any such Registration
Statement, 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,
subject to executing a confidentiality undertaking in customary form with
respect to confidential or proprietary information of the Company or such
Subsidiary.
(r) In the case of a Shelf Registration Statement, the Company and
the Trust shall, if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder of 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 that such managing underwriter or
underwriters, such agent or such holder specifies should be included
therein relating to the terms of the sale of such Securities, including
information with respect to the principal amount of 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
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
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.
(s) In the case of a Shelf Registration Statement, the Company and
the Trust, shall (A) make such representations and warranties to the
holders of such 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 Securities at the time outstanding may reasonably request,
addressed to such holder or holders and the placement or sales agent, if
any, therefor
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DEUTSCHE XXXXXX XXXXXXXX INC.
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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 Securities,
dated the date of the closing under the underwriting agreement relating
thereto); (C) to the extent permitted by Statement of Auditing Standards
No. 72, obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling
holders of 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 Administrative Trustees' certificates, as applicable, as
may be reasonably requested by any holders of at least 25% in aggregate
principal amount of the 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 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.
(t) The Company will use reasonable efforts to cause the Capital
Securities or the Exchange Capital Securities, as applicable, covered by
a Registration Statement to be rated with an appropriate rating agency,
if so requested by Holders of a majority in aggregate liquidation amount
of Capital Securities covered by such Registration Statement or the
Exchange Capital Securities, as the case may be, or by the managing
underwriters, if any.
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(u) The Company will use reasonable efforts to cause the Capital
Securities or the Exchange Capital Securities, as applicable, relating to
such Registration Statement to be listed on each securities exchange, if
any, on which debt securities issued by the Company are then listed, if
so requested by Holders of a majority in aggregate liquidation amount of
Capital Securities covered by such Registration State ment or the
Exchange Capital Securities, as the case may be, or by the managing
underwriters, if any.
(v) In the case of a Shelf Registration Statement, the Company
and/or the Trust shall notify in writing each holder of 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(a) 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;
(w) In the case of a Shelf Registration Statement, in the event
that any broker-dealer registered under the Exchange Act shall underwrite
any 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 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 Securities or as
an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Company and the Trust shall 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 Rules (or any
successor thereto)) to participate in the preparation of the registration
statement relating to such 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 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.
(x) In the case of a Shelf Registration Statement, each Holder of
Securities agrees by acquisition of such Securities that, upon receipt of
any notice of the Company pursuant to Section 4(b)(ii) through (v)
hereof, such Holder
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DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
will discontinue disposition of such Securities covered by such
Registration Statement until such Holder's receipt of copies of the
supplemental or amended prospectus contemplated by Section 4(j) hereof,
or until advised in writing (the "Resumption Notice") by the Company that
the use of the applicable prospectus may be resumed.
5. 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 the
reasonable fees and disbursements of one firm of attorneys (in addition
to local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Securities and the Exchange Securities to be sold
pursuant to a Registration Statement (the "Special Counsel") acting for
the Holders in connection therewith (the "Registration Expenses"). To
the extent that any Registration Expenses are incurred, assumed or paid
by any Holder, or any placement or sales agent therefor or underwriter
thereof on behalf of the Company or the Trust, 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
with appropriate documentation in support thereof. The Holders shall be
responsible for all underwriting commissions and discounts in the case of
a Shelf Registration Statement.
6. INDEMNIFICATION.
(a) Upon the registration of the Securities pursuant to
Section 1 or 2 hereof, and in consideration of the agreements of the
Initial Purchasers contained herein, and as an inducement to the Initial
Purchasers 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 Securities to be included in
such registration, and each person who participates as an underwriter in
any offering or sale of such Securities and each person who controls any
such person against any losses, claims, damages or liabilities, joint or
several, to which such holder 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
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
18
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holder or underwriter, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading and each of the Company and
the Trust shall, and it hereby agrees jointly and severally to, reimburse
each such holder or 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
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) The Company and the Trust may require, as a condition to
including any Securities in any registration statement filed pursuant to
Section 1 or 2 hereof or 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
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; provided, however, that failure
to so notify an indemnifying party shall not relieve such indemnifying
party from any obligation that it may have pursuant to this Section
except to the extent it has been materially prejudiced by such failure;
provided
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XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
further, however, that the failure to notify the indemnifying party shall
not relieve it from any liability that it may have to an indemnified
party otherwise than on account of this Section. If any such claim or
action shall be brought against an indemnified party, and the indemnified
party notifies the indemnifying party thereof, the indemnifying party
shall 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, jointly with
any other similarly notified indemnifying party, to assume the defense
thereof with counsel satisfactory to the 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 the indemnified party of its election to
assume the defense of such claim or action and approval by the
indemnified party of counsel, the indemnifying party shall not be liable
to the indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, that an indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and
other charges of such counsel will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has
been authorized in writing by the indemnifying party, (2) 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, (3) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party
and indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the
indemnified party) or (4) the indemnifying party has not in fact employed
counsel satisfactory to the indemnified party to assume the defense of
such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying
party or parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of
attorneys (in addition to any local counsel) at any one time for all
20
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DEUTSCHE XXXXXX XXXXXXXX INC.
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XXXXX INCORPORATED
such indemnified party or parties. Each indemnified party shall use all
reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent, but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) 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 (other than by reason of the
exceptions to the indemnification obligations set forth in such
Sections), then each applicable indemnifying party, in lieu of
indemnifying such indemnified 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 indemnified party in connection with the statements or omissions that
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 indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. 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.
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DEUTSCHE XXXXXX XXXXXXXX INC.
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The parties hereto agree that it would not be just and
equitable if contribution 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 that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwith standing the provisions of this Section, an indemnifying party
that is a holder of Transfer Restricted Securities or Exchange Securities
shall not 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 Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages that
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 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 any contribution from any person who was not guilty of such
fraudulent misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Securities registered or
underwritten, as the case may be, by them and not joint.
7. RULES 144 AND 144A. The Company shall use its best efforts to
file the reports required to be filed by it under the Securities Act and
the Exchange Act in a timely manner and, if at any time the Company is
not required to file such reports, it will, upon the written request of
any holder of Transfer Restricted Securities, make publicly available
other information so long as necessary to permit sales of such holder's
securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any holder of Transfer Restricted
Securities may reasonably request, all to the extent required from time
to time to enable such holder to sell Transfer Restricted Securities
without registration under the Securities Act within the limitation of
the exemptions provided by Rules 144 and 144A (including, without
limitation, the requirements of Rule 144A(d)(4)). Upon the written
request of any holder of Transfer Restricted Securities, the Company
shall deliver to such holder a written statement as to whether it has
complied with such requirements. Notwithstanding the foregoing, nothing
in this Section 7 shall be
22
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DEUTSCHE XXXXXX XXXXXXXX INC.
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deemed to require the Company or the Trust to register any of its
securities pursuant to the Exchange Act.
8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Shelf Registration Statement are to be sold in
an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by
the holders of a majority in aggregate liquidation amount of Capital
Securities to be included in such offering, subject to the consent of the
Company (which shall not be unreasonably withheld or delayed). The
Holders shall be responsible for all underwriting commissions and
discounts.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted 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.
9. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the
Company and the Trust have obtained the written consent of Holders of a
majority in aggregate liquidation amount of the Capital Securities and
the Exchange Capital Securities, taken as a single class. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of the
Holders of Securities whose Securities or Exchange Securities are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of
a majority in aggregate liquidation amount of the Capital Securities or
Exchange Capital Securities being sold by such Holders pursuant to such
Registration Statement.
(b) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-
class mail, telecopier, or air courier guaranteeing overnight delivery:
23
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DEUTSCHE XXXXXX XXXXXXXX INC.
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(1) if to a Holder, at the most current address given by such
Holder to the Trust in accordance with the provisions of this Section
9(b), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Trustee under the Trust
Agreement;
(2) if to you, initially at the respective addresses set forth in
the Purchase Agreement; and
(3) if to the Company or the Trust, initially at the address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one
business day after being delivered to a next-day air courier; five
business days after being deposited in the mail; when answered back, if
faxed; and when receipt is acknowledged by the recipient's telecopier
machine, if telecopied.
(c) SUCCESSORS AND ASSIGNS. 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 Securities shall, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise acquire Transfer Restricted
Securities, such transferee shall, without any further writing or action
of any kind, be deemed a party hereto for all purposes and such
Securities shall be held subject to all of the terms of this Registration
Rights Agreement, and by taking and holding such 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.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopies)
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.
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DEUTSCHE XXXXXX XXXXXXXX INC.
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(e) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(f) GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY AND THE TRUST HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPT FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
AND THE TRUST IRREVOCABLY WAIVE, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT THEY MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER
OF A TRANSFER RESTRICTED SECURITY TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(g) REMEDIES. In the event of a breach by the Company, the Trust
or a holder of Transfer Restricted Securities, of any of their
obligations under this Agreement, each holder of Transfer Restricted
Securities or the Company or the Trust, as the case may be, in addition
to being entitled to exercise all rights granted by law, including
recovery of damages (other than the recovery of damages for a breach by
the Company or the Trust of their obligations under Sections 1 and 2
25
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DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
hereof for which liquidated damages have been paid pursuant to Section 3
hereof), will be entitled to specific performance of its rights under
this Agreement. The Company, the Trust and each holder of Transfer
Restricted Securities agree that, except for such liquidated damages,
when payable monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agree that, in the event of any action
for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(h) NO INCONSISTENT AGREEMENTS. The Company and the Trust have
not, nor shall they on or after the date of this Agreement, enter into
any agreement that is inconsistent with the rights granted to the holders
of Transfer Restricted Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Company and the Trust have not
previously entered into any agreement which remains in effect granting
any registration rights with respect to any capital securities to any
person. Without limiting the generality of the foregoing, without the
written consent of the holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities, the
Company and the Trust shall not grant to any person the right to request
the Company to register any capital securities of the Company or the
Trust under the Securities Act unless the rights so granted are subject
in all respects to the prior rights of the holders of Transfer Restricted
Securities set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of the Agreement.
(i) NO PIGGYBACK ON REGISTRATIONS. Neither the Company nor any of
its securityholders (other than the holders of Transfer Restricted
Securities in such capacity) shall have the right to include any
securities of the Company in any Shelf Registration or Exchange Offer
other than Transfer Restricted Securities.
(j) SEVERABILITY. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or enforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their
reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
26
XXXXXXX, XXXXX & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(k) 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 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
Securities pursuant to the Purchase Agreement and the transfer and
registration of Securities by such holder and the consummation of an
Exchange Offer.
(l) 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 Securities shall be
made available, upon reasonable prior notice to the Company, the Property
Trustee or the Trustee under the Indenture, as applicable, for inspection
and copying on any business day by any holder of Securities for proper
purposes only (which shall include any purpose related to the rights of
the holders of Securities under the Securities, the Indenture and this
Agreement) at the offices of the Company at the address thereof
referenced in Section 9(b) above, at the office of the Property Trustee
or at the office of the Trustee under the Indenture.
27
XXXXXXX, SACHS & CO.
DEUTSCHE XXXXXX XXXXXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
Please confirm that the foregoing correctly sets forth the
agreement between the Company and you.
Very truly yours,
INTEGON CAPITAL I
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Administrative Trustee
INTEGON CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Deutsche Xxxxxx Xxxxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: /s/ Xxxxxxx, Sachs & Co.
----------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Initial Purchasers
EXHIBIT 4.7(A)
ANNEX A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging
and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities
Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of
Exchange Securities received in exchange for Securities where such
Securities were acquired by such broker-dealer as a result of market-
making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined
herein), it will make this Prospectus available to any broker-dealer for
use in connection with any such resale. See "Plan of Distribution."
EXHIBIT 4.7(B)
ANNEX B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were
acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities.
See "Plan of Distribution."
EXHIBIT 4.7(C)
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales
of Exchange Securities received in exchange for Securities where such
Securities were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, for a period of 180
days after the Expiration Date, it will make this prospectus, as amended
or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until , 199 , all
dealers effecting transactions in the Exchange Securities may be required
to deliver a prospectus./*/
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may
be sold from time to time in one or more transactions in the over-the-
counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an "underwriter" within the
meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any
such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging
that it will deliver and by delivering a prospectus, a broker-dealer will
not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
For a period of 180 days after the Expiration Date the Company
will promptly send additional copies of this Prospectus and any amendment
or supplement to this Prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay
all expenses incident to the Exchange
--------------------
/*/ In addition, the legend required by Item 502(e) of Regulation S-K
will appear on the back cover page of the Exchange Offer prospectus.
Offer (including the expenses of one counsel for the Holders of the
Securities) other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under
the Securities Act.
EXHIBIT 4.7(D)
ANNEX D
[ ] check here if you are a broker-dealer and wish to receive 10 additional
copies of the prospectus and 10 copies of any amendments or supplements
thereto.
Name:
-------------------------------------------------
Address:
-------------------------------------------------
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If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Securities. If the undersigned is a broker-
dealer that will receive Exchange Securities for its own account in
exchange for Securities that were acquired as a result of market-making
activities or other trading activities, it acknowledges that it will
deliver a prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
