EXHIBIT 4.13
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated November 26, 1996, by and
among FBS Capital I, a Delaware business trust (the "Trust"), First Bank System,
Inc., a Delaware corporation registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended ("FBS") and Xxxxxxx, Xxxxx & Co., Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, Xxxx Xxxxxxxx Incorporated and Xxxxx Xxxxxxx Inc.
(collectively, the "Purchasers") of the 8.09% Capital Securities of the Trust.
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
(a) "Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
(b) "Capital Securities Exchange and Registration Rights Agreement" means
the Exchange and Registration Rights Agreement in respect of the Capital
Securities dated November 26, 1996 among FBS, the Trust and the Purchasers.
(c) "Debentures" means the 8.09% Junior Subordinated Deferrable Interest
Debentures due November 15, 2026 of FBS, to be issued pursuant to the Indenture.
(d) "Effective Time", in the case of (i) an Exchange Offer, means the date
on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "Exchange Debentures" has the meaning set forth in Section 2(a) hereof.
(g) "Exchange Guarantee" has the meaning set forth in Section 2(a) hereof.
(h) "Exchange Offer" has the meaning set forth in Section 2(a) hereof.
(i) "Exchange Registration" has the meaning set forth in Section 3(c)
hereof.
(j) "Exchange Securities" has the meaning set forth in Section 2(a) hereof.
(k) "Guarantee" means the Guarantee of FBS with respect to the Securities,
to the extent set forth in the Guarantee Agreement.
(l) "Guarantee Agreement" means the Guarantee Agreement dated November 26,
1996 between FBS and the Wilmington Trust Company, a Delaware banking
corporation as Property Trustee of the Trust (together with its successors and
assigns "Property Trustee") for the benefit of the holders of the Securities.
(m) "Guarantee Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement in respect of the Guarantee dated
November 26, 1996 among FBS, the Trust and the Purchasers.
(n) The term "holder" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement; provided however that if all the
Registrable Securities and all the Securities cease to be outstanding, then it
shall mean the Debentures.
(o) "Indenture" means the Indenture dated as of November 15, 1996, between
FBS and Wilmington Trust Company, as Debenture Trustee, as supplemented by an
officer's certificate dated November 26, 1996, and as further amended or
supplemented from time to time.
(p) "Issue Date" means November 26, 1996.
(q) "Liquidation Amount" means the stated liquidation preference of the
Securities.
(r) "New Guarantee Agreement" has the meaning set forth in the Guarantee
Exchange and Registration Rights Agreement.
(s) The term "person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(t) "Purchase Agreement" means the Purchase Agreement dated November 19,
1996, among FBS, the Trust and the Purchasers.
(u) "Registrable Securities" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement; provided however that if
all the Registrable Securities and all the Securities cease to be outstanding,
then it shall mean the Debentures which have not been sold, directly or
indirectly, pursuant to an effective registration statement under the Securities
Act.
(v) "Registration Default" has the meaning set forth in Section 2(c)
hereof.
(w) "Registration Expenses" has the meaning set forth in Section 4 hereof.
(x) "Resale Period" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreements.
(y) "Securities" means, collectively, the $300,000,000 aggregate
Liquidation Amount of the 8.09% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold to the Purchasers, and
any securities issued in exchange
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therefor or in lieu thereof pursuant to the Trust Agreement; provided however
that if all the Registrable Securities and all the Securities cease to be
outstanding, then it shall mean the Debentures which have been registered under
the Securities Act.
(z) "Securities Act" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
(aa) "Shelf Registration" has the meaning set forth in Section 2(b) hereof.
(bb) "Special Interest" has the meaning set forth in Section 2(c) hereof.
(cc) "Trust Agreement" means the Amended and Restated Trust Agreement dated
as of November 26, 1996 among FBS, as Depositor, Wilmington Trust Company, as
Property Trustee and Delaware Trustee, and the Administrative Agents named
therein.
(dd) "Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
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 Exchange
and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. Registration Under the Securities Act.
(a) If FBS and the Trust file a registration statement pursuant to Section
2(a) of the Capital Securities Exchange and Registration Rights Agreement, then
FBS and the Trust agree, jointly and severally, to include in such registration
statement an offer to exchange (the "Exchange Offer") all of the Debentures for
a like aggregate principal amount of a new series of junior subordinated
deferrable interest debentures of FBS which are substantially identical to the
Debentures (and which are entitled to the benefits of the Indenture which will
be qualified under the Trust Indenture Act) except that they have been
registered pursuant to an effective registration statement under the Securities
Act and such new debentures will not contain provisions for Special Interest or
provisions restricting transfer in the absence of registration under the
Securities Act (such new debentures hereinafter called "Exchange Debentures").
Such registration statement shall also relate to, and the consummation of the
Exchange Offer shall be conditioned upon the consummation of, an offer to
exchange the Securities for substantially identical capital securities of the
Trust pursuant to the Capital Securities Exchange and Registration Rights
Agreement (the "Exchange Securities") and to an offer to exchange the Guarantee
for a substantially identical guarantee of FBS pursuant to the Guarantee
Exchange and Registration Rights Agreement (the "Exchange Guarantee"). FBS and
the Trust agree, jointly and severally, to use their reasonable best efforts to
cause such registration statement to become effective under the Securities Act
as soon as practicable thereafter. The Exchange Offer will be registered under
the Act on the appropriate form. The Exchange Offer shall be deemed to have been
completed upon the
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completion of the exchange of the Exchange Debentures for all the Debentures
pursuant to the Exchange Offer.
(b) If (i) FBS and the Trust file a "shelf" registration statement pursuant
to Section 2(b) of the Capital Securities Exchange and Registration Rights
Agreement without also filing a registration statement pursuant to Section 2(a)
thereof or (ii) none of the Securities or the Registrable Securities is
outstanding and the Exchange Offer has not been effected, then in the case of
clause (i), such "shelf" registration statement shall provide for the
registration of the Debentures and, in the case of clause (ii) none of the
Securities or the Registrable Securities is outstanding and the Exchange Offer
has not been effected, the FBS shall file under the Securities Act, as soon 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 under the Securities Act and/or any
similar rule that may be adopted by the Commission (in each case, the "Shelf
Registration"). In the case of clause (i) only, the Shelf Registration shall
also provide for the registration of the Securities pursuant to the Capital
Securities Exchange and Registration Rights Agreement and for the registration
of the Guarantee pursuant to the Guarantee Exchange and Registration Rights
Agreement. FBS and, if applicable, the Trust agree, jointly and severally, 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 (A) the third anniversary of the Issue
Date or (B) such time as there are no longer any Registrable Securities
outstanding. FBS and, if applicable, the Trust further agree, jointly and
severally, 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 FBS and, if applicable, the Trust for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration, and FBS and, if applicable, the Trust agree, jointly and
severally, to furnish to the holders of the Registrable Securities copies of any
such supplement or amendment prior to its being used and/or filed with the
Commission.
(c) In the event that (i) FBS and, if applicable, the Trust have not filed
the registration statement relating to the Exchange Offer (or, if applicable,
the Shelf Registration) on or before the 150th day after the Issue Date, or (ii)
such registration statement (or, if applicable, the Shelf Registration) has not
become effective or been declared effective by the Commission on or before the
180th day after the Issue Date, or (iii) any of the Exchange Offer, the exchange
offers contemplated by the Capital Securities Exchange and Registration Rights
Agreement and the exchange offer contemplated by the Guarantee Exchange and
Registration Rights Agreement has not been completed within 210 days after the
Issue Date (if the Exchange Offer is then required to be made) or (iv) any
registration statement required by Section 2(a) or 2(b) is filed and declared
effective but shall thereafter cease to be effective (except as specifically
permitted herein) without being succeeded immediately by an additional
registration statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), then interest will
accrue (in addition to the stated interest rate on the Debentures) at the rate
of 0.25% per annum on the principal amount of the Debentures for the period from
the occurrence of the Registration Default until such time as no Registration
Default is in effect. Such additional interest (the "Special Interest") will be
payable in cash semi-annually in
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arrears on each May 15 and November 15 in accordance with, and subject to the
deferral provisions of, the Indenture. Special Interest, if any, will be
computed on the basis of a 365 or 366 day year, as the case may be, and the
number of days actually elapsed.
(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 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.
3. Registration Procedures.
If FBS and, if applicable, the Trust file a registration statement pursuant
to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, FBS shall qualify the Indenture, the New
Guarantee Agreement, if applicable, and the Trust Agreement, if applicable,
under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a
new trustee under any of the Indenture, the New Guarantee Agreement or the Trust
Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of FBS and the
Trust with respect to the registration of the Exchange Securities, the Exchange
Guarantee and the Exchange Debentures, as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, FBS and the Trust shall, as soon as
reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Issue Date, a
registration statement with respect to the Exchange Registration on
any form which may be utilized by FBS and the Trust and which shall
permit the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as contemplated
by Section 2(a) hereof, and use its reasonable best efforts to cause
such registration statement to become effective as soon as practicable
thereafter;
(ii) as soon as practicable 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 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 such
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
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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 promulgated 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;
(iii) promptly notify each broker-dealer that has requested
or received copies of the prospectus included in such registration
statement, 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
the receipt 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 joint and several representations and warranties of FBS and the
Trust contemplated by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by either FBS or the Trust of
any notification with respect to the suspension of the qualification
of the Exchange Securities and the Exchange Guarantee 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 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 promulgated 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;
(iv) in the event that FBS and the Trust would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay 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 promulgated 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;
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(v) use their 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;
(vi) use their reasonable best efforts to (A) register or
qualify the Exchange Securities and the Exchange Guarantee under the
securities laws or blue sky laws of such jurisdiction 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, 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 FBS nor
the Trust shall be required for any such purpose to (1) qualify to do
business in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(g)(vi),
(2) consent to general service of process in any such jurisdiction or
(3) in the case of FBS, make any changes to its charter or by-laws or
any agreement between it and its stockholders or in the case of the
Trust, make any changes to the Trust Agreement;
(vii) use their 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 effect the
Exchange Registration, the Exchange Offer and the offering and sale of
Exchange Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities
as soon as practicable but no later than eighteen months after the
Effective Time, an earnings statement of FBS and its subsidiaries
complying with Section 11 (a) of the Securities Act (including, at the
option of FBS, Rule 158 thereunder).
(d) In connection with the joint and several obligations of FBS and the
Trust with respect to the Shelf Registration, if applicable, FBS and, if
applicable, the Trust shall use their reasonable best efforts to cause the Shelf
Registration to become effective to permit the sale of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of distribution thereof described in the Shelf Registration. In
connection therewith, FBS and, if applicable, the Trust shall as soon as
reasonably possible (or as otherwise specified):
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(i) prepare and file with the Commission, as soon as
practicable, a registration statement with respect to the Shelf
Registration on any form which may be utilized by FBS and, if
applicable, the Trust and which shall permit the disposition of the
Registrable Securities in accordance with the intended method or
methods thereof, as specified in writing to FBS and, if applicable,
the Trust by the holders of the Registrable Securities and use their
reasonable best efforts to cause such registration statement to become
effective as soon as practicable thereafter;
(ii) as soon as practicable, 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 with the provisions of the Securities Act
applicable to FBS or, if applicable, the Trust in connection with 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, set forth in such registration
statement;
(iv) provide (A) the holders of the Registrable Securities to
be included in such registration statement and not more than one
counsel for all the holders of such Registrable Securities, (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 and (D) one counsel for such underwriters or agents, if any,
reasonable 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 FBS's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(iv) who shall certify to FBS and, if
applicable, 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 FBS and, if
applicable, the Trust, and cause the officers, employees, counsel and
independent certified public accountants of FBS and, if applicable,
the Trust to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred to in
such
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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 FBS 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, except by disclosure by
such party in breach of this Agreement), or (B) such person shall be
required so to disclose such information pursuant to the subpoena or
order of any court or other governmental agency or body having
jurisdiction over the matter (subject to, and only to the extent
required by, the requirements of such order, and only after such
person shall have given FBS prompt prior written notice of such
requirement);
(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 joint and several representations and
warranties of FBS and, if applicable, the Trust contemplated by
Section 3(d)(xv) or Section 5 cease to be true and correct in all
material respects, (E) of the receipt by either FBS or the Trust of
any notification with respect to the suspension of the qualification
of the Registrable Securities and, if applicable, the Guarantee, 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, or any document incorporated by reference
in any of the foregoing, 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
promulgated 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 their 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;
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(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder or counsel for the holders
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, without limitation,
information with respect to the Liquidation Amount or the principal
amount, as the case may be, of Registrable Securities being sold by
any 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(d)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto 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 with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated 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 each of FBS and, if applicable, the Trust hereby
consents 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 provided to such party by FBS and 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;
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(x) use their reasonable best efforts to (A) register or
qualify the Registrable Securities to be included in such registration
statement and, if applicable, the Guarantee under such securities laws
or blue sky laws of such 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 and (C) take any and all other actions as
may be reasonably necessary or advisable to enable each such holder,
agent, if any, and underwriter, if any, to consummate the disposition
in such jurisdictions of Registrable Securities; provided, however,
that neither FBS nor, if applicable, the Trust shall be required for
any such purpose to (1) qualify to do business in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(x), (2) consent to general service
of process in any such jurisdiction, (3) in the case of FBS, make any
changes to its charter or by-laws or any agreement between it and its
shareholders or, if applicable, in the case of the Trust, make any
changes to the Trust Agreement;
(xi) use their 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 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; 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 Registrable Securities,
not later than the applicable Effective Time;
(xiv) enter into not more than one underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including (without
limitation)
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provisions relating to indemnification and contribution substantially
the same as those set forth in Section 6 hereof, and take such other
actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate Liquidation Amount,
or in aggregate principal amount, as the case may be, of the
Registrable Securities at the time outstanding shall reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities; provided, that FBS and, if applicable, the
Trust shall not be required to (i) 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 FBS and, if applicable, the Trust
shall have then undertaken or (ii) enter into any engagement letter,
agency agreement, "best effort" underwriting agreement or similar
agreements whatsoever with respect to the Registrable Securities, and
provided, further that FBS and, if applicable, the Trust shall not be
obligated to enter into any such agreement with a broker-dealer which
results in the need for a "qualified independent underwriter" (within
the meaning of the Rules of Fair Practice and the By-Laws of the
National Association of Securities Dealers, Inc. ("NASD") or any
successor thereto, as amended from time to time (the "Rules and By-
Laws of NASD"));
(xv) whether or not an agreement of the type referred to in
Section (3)(d)(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
substantially the same as those set forth in Section V of the Purchase
Agreement and such other representations and warranties as are
customarily made with respect to the offering of debt securities
pursuant to any appropriate agreement or to a registration statement
on the applicable form under the Securities Act; (B) obtain an opinion
or opinions of counsel to FBS and, if applicable, the Trust
substantially the same as the opinions provided for in Section IV of
the Purchase Agreement with such additions, substitutions or deletions
of such matters as are customarily covered in opinions for an
underwritten offering, 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) (it being agreed that the matters to be covered by
such opinion shall also include, without limitation, the absence of
governmental approvals required to be obtained in connection with the
Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section (3)(c)(xiv) hereof,
except such approvals as may be required under state securities or
12
blue sky laws; and the compliance as to form of such registration
statement and any documents incorporated by reference therein and of
the Indenture, the Guarantee Agreement, if applicable, and the Trust
Agreement, if applicable, with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder, respectively); and, such opinion
shall also state that such counsel has no reason to believe that, as
of the date of the opinion and of the registration statement or most
recent post-effective amendment thereto, as the case may be, such
registration statement and the prospectus included therein, as then
amended or supplemented, and the documents incorporated by reference
therein (in each case other than the financial statements and other
financial information contained therein) contains or contained an
untrue statement of a material fact or omits or omitted to state
therein a material fact necessary to make the statements therein not
misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
FBS and, if applicable, the Trust addressed to the selling holders of
Registrable Securities, the placement or sales agent, if any, therefor
and 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
substantially in the form of Exhibit F to the Purchase Agreement; (D)
deliver such other documents and certificates, including officers'
certificates, as may be reasonably requested by any holders of at
least 25 % in aggregate Liquidation Amount, or in aggregate principal
amount, as the case may be, 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 FBS and, if
applicable, the Trust; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are
provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities
of any proposal by FBS and the Trust to amend or waive any provision
of this Exchange and 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
13
distribution" (within the meaning of the Rules and
By-Laws of NASD) 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, without limitation, by (A) if such Rules or By-Laws,
including Schedule E thereto (or any successor thereto), shall so
require, engaging 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 (or to such other customary extent as may
be required by such underwriter), 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 and By-Laws of
NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its holders of the
Securities as soon as practicable but in any event not later than
eighteen months after the effective date of such registration
statement, an earnings statement of FBS and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of
FBS, Rule 158 thereunder).
(e) In the event that FBS and, if applicable, the Trust would be required,
pursuant to Section 3(d)(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, FBS and, if applicable, the Trust shall
without delay prepare and furnish to each such holder, to each placement or
sales agent, if any, and to each 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 promulgated
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 FBS and, if applicable, the Trust pursuant to Section 3(d)(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 shall have received copies of such
amended or supplemented prospectus, and if so directed by FBS and, if
applicable, the Trust, such holder shall deliver to FBS (at FBS'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.
14
(f) FBS and, if applicable, the Trust may require each holder of
Registrable Securities as to which any registration is being effected to furnish
in writing to FBS and, if applicable, the Trust such information regarding such
holder and such holder's intended method of distribution of such Registrable
Securities as FBS 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 FBS and, if
applicable, the Trust as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to FBS and, if applicable, 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 distribution of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
distribution 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 FBS and, if applicable,
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 distribution 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. Each such holder
shall comply with the provisions of the Securities Act applicable to such holder
with respect to the disposition by such holder of Registrable Securities covered
by such registration statement in accordance with the intended methods of
disposition by such holder set forth in such registration statement.
(g) Until the expiration three years after the Issue Date, FBS will not,
and will not permit any of its "affiliates" (as defined in Rule 144 under the
Act) to, resell any of the Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them except pursuant to an
effective registration statement under the Act or any exemption therefrom;
provided, however, that, for purposes of this paragraph, "affiliates" shall not
include the Purchasers or any of their affiliates other than FBS and its
subsidiaries, officers, managers and directors.
4. Registration Expenses.
If FBS and, if applicable, the Trust file a registration statement pursuant
to Section 2(a) or Section 2(b), the following provisions shall apply:
FBS agrees to bear and to pay or cause to be paid promptly upon request
being made therefor all expenses incident to the performance by FBS and, if
applicable, the Trust or compliance with this Exchange and Registration Rights
Agreement, including, without limitation, (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 and, if applicable, the
Guarantee for offering and sale under the state securities and blue sky laws
referred to in Section 3(d)(x) hereof, including reasonable fees and
disbursements of counsel 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
15
supplement to the foregoing, and the certificates representing the Securities
and all documents relating hereto, (d) messenger and delivery expenses, (e) fees
and expenses of the Debenture Trustee under the Indenture, the Issuer Trustees
under the Trust Agreement and, if applicable, the Guarantee Trustee under the
Guarantee Agreement, if applicable, and of any escrow agent or custodian, (f)
internal expenses (including, without limitation, all salaries and expenses of
FBS's officers and employees performing legal or accounting duties), (g) fees,
disbursements and expenses of counsel and independent certified public
accountants of FBS and, if applicable, the Trust (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses of any "qualified
independent underwriter" engaged pursuant to Section 3(d)(xvii) hereof, (i)
fees, 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 Liquidation Amount, or the aggregate
principal amount, as the case may be, of the Registrable Securities being
registered, and fees, expenses and disbursements of any other persons, including
special experts, retained by FBS or, if applicable, the Trust 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, FBS shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a written
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency or brokerage 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, transfer taxes on
resale of any of the Securities by such holders and any advertising or
solicitation expenses other than expenses specifically referred to above
incurred by or on behalf of such holders in connection with any offers they may
make.
5. Representations and Warranties.
FBS and, if applicable, the Trust, jointly and severally, represent and
warrant to, and agree with, each Purchaser and each of the holders from time to
time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities, the
Guarantee, if applicable, and the Debentures and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant to
Section 3(d)(ix) 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, the
rules and regulations of the Commission promulgated thereunder and any such
registration statement and any amendment thereto 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
any such prospectus or any amendment or supplement thereto will not
16
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; and at all times
subsequent to the Effective Time of any such registration statement 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(c)(iii)(F) or Section 3(d)(vi)(F) hereof until
(ii) such time as FBS and, if applicable, the Trust furnish an amended or
supplemented prospectus pursuant to Section 3(c)(iv) or Section 3(e) hereof, as
the case may be, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant to
Section 3(c) or Section 3(d)(ix) 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 promulgated 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 FBS and, if
applicable, the Trust by a holder of Registrable Securities or any placement or
sales agent therefor or underwriter thereof 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 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 FBS and the Trust, if applicable, by a
holder of Registrable Securities expressly for use therein.
(c) The representations and warranties of the Trust, if applicable, and FBS
contained in Section V of the Purchase Agreement are true and correct with the
same force and effect as though expressly made at and as of the date hereof.
6. Indemnification.
(a) Upon the registration of the Registrable Securities pursuant to Section
2 hereof, and in consideration of the agreements of the Purchasers contained
herein, and as an inducement to the Purchasers to purchase the Securities, the
Trust and FBS, jointly and severally, agree 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, if any, who controls such holder, or such placement or sales agent, if
any, or such underwriter, if any, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each an "Indemnified Person") as follows:
17
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any 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 as furnished by the Trust or FBS to any such holder, agent or
underwriter (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in such registration statement or such
preliminary, final or summary prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission was made in reliance upon and in conformity
with written information relating to such Indemnified Person furnished to
the Trust and FBS by, or on behalf of, such Indemnified Person expressly
for use in such registration statement or such preliminary, final or
summary prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission (except as made in reliance upon and
in conformity with information relating to such Indemnified Person
furnished by, or on behalf of, such Indemnified Person as aforesaid), if
such settlement is effected with the written consent of the Trust and
FBS; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by, or on
behalf of, such Indemnified Person as aforesaid) to the extent that any
such expense is not paid under (i) or (ii) above.
provided, however, that indemnification with respect to any prospectus shall not
inure to the benefit of any holder of Registrable Securities or Exchange
Securities from whom the Person asserting any loss, claim, liability, damage or
expense purchased such Securities, if a copy of the Prospectus (as then amended
or supplemented and furnished by FBS to such holder) was not sent or given by or
on behalf of such person or to such person if such is required by law
18
at or prior to the sale of such Registrable Securities or Exchange Securities,
as the case may be, and if the prospectus (as so amended and supplemented) would
have cured the defect giving rise to such loss, claim, liability, damage or
expense.
(b) FBS may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Section 2 hereof and to entering
into any placement or underwriting agreement with respect thereto, that FBS
shall have received an undertaking reasonably satisfactory to them from the
holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and FBS and
each person, if any, who controls the Trust or FBS within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any registration
statement under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or FBS to any such holder, agent or
underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
FBS by or on behalf of such holder, or such placement or sales agent, if any, or
such underwriter, if any, expressly for use in such registration statement or
such preliminary, final or summary prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. 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.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in this Section 6 is for any reason
held to be unavailable
19
to such holders, such placement or sales agents, if any, or such underwriters,
if any, in accordance with its terms, the Trust, FBS and such holders, such
placement and sales agents, if any, and such underwriters, if any, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Trust, FBS
and such holders, such placement and sales agents, if any, and such
underwriters, if any, in such proportions as is appropriate to reflect the
relative benefits received by the Trust and FBS on the one hand and such
holders, such placement and sales agents, if any, and such underwriters, if any,
on the other. The relative benefits received by the Trust and FBS on the one
hand and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other shall be deemed to be in such proportion
represented by the percentage that the total commissions and underwriting
discounts received by such holders, such placement and sales agents, if any, and
such underwriters, if any, to the date of such liability bears to the total
sales price (before deducting expenses) received by the Trust and such holders,
such placement and sales agents, if any, and such underwriters, if any, from the
sale of such Securities made to the date of such liability, and the Trust and
FBS are jointly and severally responsible for the balance. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if such holders, such placement and sales agents, if any, and
such underwriters, if any, failed to give the notice required under this
subsection (c), then the Trust, FBS and such holders, such placement and sales
agents, if any, and such underwriters, if any, shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Trust and FBS on the one hand and such holders, such
placement and sales agents, if any, and such underwriters, if any, on the other
in connection with the statements or omissions which resulted in such
liabilities, claims, damages and expenses, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Trust and FBS on the one hand or is
supplied by, or on behalf of, such holders, such placement or sales agents, if
any, and such underwriters, if any, on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust, FBS and such holders, such placement or
sales agents, if any, and such underwriters, if any, agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
pro rata (even if such holders, such placement or sales agents, if any, and such
underwriters, if any, 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 paragraph. Notwithstanding the provisions of
this paragraph, such holders, such placement or sales agents, if any, and such
underwriters, if any, shall not be required to contribute any amount in excess
of the amount by which the total price at which the Securities referred to in
the second sentence of this paragraph that were offered and sold to the public
through such holders, such placement or sales agents, if any, and such
underwriters, if any, exceeds the amount of any damages that such holders, such
placement or sales agents, if any, and such underwriters, if any, have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled under this
paragraph to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each
20
person, if any, who controls any such holders, such placement or sales agents,
if any, and such underwriters, if any, within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such holders, such placement or sales agents, if any, and such underwriters,
if any, and each person, if any, who controls the Trust or FBS within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Trust or FBS.
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 Liquidation Amount, or aggregate
principal amount, as the case may be, 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 Trust, if applicable, and
FBS.
(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.
(c) Consolidated Earnings Statements. In the event of an underwritten
offering, FBS agrees to make generally available to holders of Securities as
soon as practicable, but in any event not later than eighteen months after the
effective date of the applicable registration statement (as defined in Rule
158(c) under the Securities Act), a consolidated earnings statement of FBS
(which need not be audited) complying with Section 11 (a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
FBS, Rule 158 under the Securities Act)
8. Rule 144.
FBS covenants to the holders of Registrable Securities that to the extent
it shall be required to do so under the Exchange Act, FBS shall timely file the
reports required to be filed by it under the Exchange Act or the Securities Act
(including, but not limited to, 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 make Rule 144 available to such holder for the sale of
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
21
to Rule 144, FBS shall deliver to such holder a written statement as to whether
it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Trust and FBS represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this Exchange
and Registration Rights Agreement, the Capital Securities Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(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 Trust or to
FBS, then to First Bank System, Inc., First Bank Place, 000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, and if to a holder, to the address of such holder
set forth in the security register or other records of the Trust or of the
Debenture Trustee under the Indenture, as the case may be, or to such other
address as any party may have furnished to the others 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 Exchange and
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 become a holder of 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 Exchange and 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 terms and provisions of this Exchange and
Registration Rights Agreement. If FBS shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
22
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and 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 and the transfer
and registration of Registrable Securities by such holder and/or the
consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and 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 FBS, the Trust and
the holders of at least 66-2/3 percent in aggregate Liquidation Amount or
principal amount, as the case may be, 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 Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of FBS at
the address thereof set forth in Section 9(c) above.
(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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This Agreement is hereby executed as of the day and year first above written.
FIRST BANK SYSTEM, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FBS CAPITAL I
By: /s/ Xxx X. Mitau
---------------------------------------
Administrative Agent
XXXXXXX, SACHS & CO.
As Representative of the Purchasers
Named in Schedule 1 to the Purchase
Agreement
By: /s/ Xxxxxxx, Xxxxx & Co.
--------------------------------------
(Xxxxxxx, Sachs & Co.)
Acting severally, and not jointly and
severally, on behalf of themselves and
each of the Purchasers named in Schedule
I to the Purchase Agreement
