EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 29,
1997 among The Bear Xxxxxxx Companies Inc. (the "Company"),
Bear Xxxxxxx Capital Trust I, a Delaware statutory business
trust (the "Trust"), and Bear, Xxxxxxx & Co. Inc., Chase
Securities Inc., Xxxxxxx, Xxxxx & Co., X.X. Xxxxxx
Securities Inc. and NationsBanc Capital Markets, Inc. as the
initial purchasers (the "Initial Purchasers") of the
Fixed/Adjustable Rate Capital Securities of the Trust, which
are guaranteed by the Company.
I. Certain Definitions.
For purposes of this Registration Rights Agreement, the
following terms shall have the following respective
meanings:
(a) "Administrators" shall mean the
Administrators named under the Trust Agreement.
(b) "Capital Securities" shall mean the
Fixed/Adjustable Rate Capital Securities,
Liquidation Amount $1,000 per Capital Security, to
be issued under the Trust Agreement and sold to
the Initial Purchasers, and those securities
issued in exchange therefor or in lieu thereof
pursuant to the Trust Agreement.
(c) "Closing Date" shall mean the date on which
the Capital Securities are initially issued.
(d) "Commission" shall mean the Securities and
Exchange Commission, or any other federal agency
at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute
for the particular purpose.
(e) "Debentures" shall mean the Fixed/Adjustable
Rate Junior Subordinated Deferrable Interest
Debentures due 2027 of the Company to be issued
under the Indenture, and securities issued in
exchange therefor or in lieu thereof pursuant to
the Indenture.
(f) "Effective Time", in the case of (i) an
Exchange Offer, shall mean the time and date as of
which the Commission declares the Exchange Offer
Registration Statement effective or as of which
the Exchange Offer Registration Statement
otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of
which the Commission declares the Shelf
Registration effective or as of which the Shelf
Registration otherwise becomes effective.
(g) "Exchange Act" shall mean the Securities
Exchange Act of 1934, or any successor thereto, as
the same shall be amended from time to time.
(h) "Exchange Offer" shall have the meaning
assigned thereto in Section 2(a) hereof.
(i) "Exchange Offer Registration Statement" shall
have the meaning assigned thereto in Section 2(a)
hereof.
(j) "Exchange Registration" shall have the
meaning assigned thereto in Section 3(f) hereof.
(k) "Exchange Securities" shall have the meaning
assigned thereto in Section 2(a) hereof.
(l) "Guarantee" shall mean the guarantee of the
Capital Securities by the Company under the
Guarantee Agreement, dated as of January 29, 1997,
between the Company and The Chase Manhattan Bank,
as Guarantee Trustee.
(m) The term "holder" shall mean the Initial
Purchasers for so long as they own any Registrable
Securities, and such of their respective
successors and assigns who acquire Registrable
Securities, directly or indirectly, from such
person or from any successor or assign of such
person, in each case for so long as such person
owns any Registrable Securities.
(n) "Indenture" shall mean the Indenture, dated
as of January 29, 1997, between the Company and
The Chase Manhattan Bank, as Trustee, as the same
shall be amended from time to time.
(o) "Liquidation Amount" shall mean the stated
amount of $1,000 per Trust Security.
(p) The term "person" shall mean a corporation,
association, partnership, organization, business,
individual, government or political subdivision
thereof or governmental agency.
(q) "Registrable Securities" shall mean the
Securities; provided, however, that such
Securities shall cease to be Registrable
Securities when (i) in the circumstances
contemplated by Section 2(a) hereof, such
Securities have been exchanged for Exchange
Securities in an Exchange Offer as contemplated in
Section 2(a) (provided that any Exchange
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Securities received by a broker-dealer in an
Exchange Offer in exchange for Registrable
Securities that were not acquired by the broker-
dealer directly from the Company will also be
Registrable Securities through and including the
earlier of the 180th day after the Exchange Offer
is completed or such time as such broker-dealer no
longer owns such Exchange Securities); (ii) in the
circumstances contemplated by Section 2(b) hereof,
a registration statement registering such
Securities under the Securities Act has been
declared or becomes effective and such Securities
have been sold or otherwise transferred by the
holder thereof pursuant to such effective
registration statement; (iii) such Securities are
sold pursuant to Rule 144 under circumstances in
which any legend borne by such Securities relating
to restrictions on transferability thereof, under
the Securities Act or otherwise, is removed or
such Securities are eligible to be sold pursuant
to paragraph (k) of Rule 144; or (iv) such
Securities shall cease to be outstanding.
(r) "Registration Default" shall have the meaning
assigned thereto in Section 2(c) hereof.
(s) "Registration Default Interest" shall have
the meaning assigned thereto in Section 2(c)
hereof.
(t) "Registration Default Distributions" shall
have the meaning assigned thereto in Section 2(c).
(u) "Registration Expenses" shall have the
meaning assigned thereto in Section 4 hereof.
(v) "Resale Period" shall have the meaning
assigned thereto in Section 2(a) hereof.
(w) "Restricted Holder" shall mean (i) a holder
that is an affiliate of the Company within the
meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of
such holder's business or (iii) a holder who has
arrangements or understandings with any person to
participate in the Exchange Offer for the purpose
of distributing Exchange Securities.
(x) "Rule 144," "Rule 405" and "Rule 415" shall
mean, in each case, such rule promulgated under
the Securities Act.
(y) "Securities" shall mean, collectively, the
Capital Securities, the Guarantee and the
Debentures.
(z) "Securities Act" shall mean the Securities
Act of 1933, or any successor thereto, as the same
shall be amended from time to time.
(aa) "Shelf Registration" shall have the meaning
assigned thereto in Section 2(b) hereof.
(ab) "Trust Agreement" shall mean the Amended and
Restated Trust Agreement, dated as of January 29,
1997, among the Company, as Depositor, The Chase
Manhattan Bank, as Property Trustee, the
individuals named therein, as Administrators and
Chase Manhattan Bank Delaware, as Delaware
Trustee.
(ac) "Trust Indenture Act" shall mean the Trust
Indenture Act of 1939, or any successor thereto,
as the same shall be amended from time to time.
(ad) "Trust Securities" shall mean collectively
the Capital Securities and the Common Securities
to be issued under the Trust Agreement to the
Company.
Unless the context otherwise requires, any
reference herein to a "Section" or "clause" refers to a
Section or clause, as the case may be, of this Registration
Rights Agreement, and the words "herein," "hereof' and,
hereunder' and other words of similar import refer to this
Registration Rights Agreement as a whole and not to any
particular Section or other subdivision. Unless the context
otherwise requires, any reference to a statute, rule or
regulation refers to the same (including any successor
statute, rule or regulation thereto) as it may be amended
from time to time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the
Company and the Trust agree to file under the Securities Act
within 60 days after the Closing Date, a registration
statement (the "Exchange Offer Registration Statement")
relating to an offer to exchange (the "Exchange Offer") any
and all of the Securities for a like aggregate amount of
capital securities issued by the Trust and guaranteed by the
Company and underlying fixed/adjustable rate junior
subordinated interest deferrable debentures of the Company,
which capital securities, guarantee and debentures are
identical to the Capital Securities, the Guarantee and the
Debentures, respectively (and are entitled to the benefits
of trust indentures which have been qualified under the
Trust Indenture Act) except that they have been registered
pursuant to an effective registration statement under the
Securities Act, do not contain restrictions on transfers and
do not contain provisions for the additional interest and
additional distributions contemplated in Section 2(c) below
(such new securities hereinafter called "Exchange
Securities"). Except as set forth in Section 2(b) below,
the Company and the Trust agree to use their best efforts to
cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 150 days
after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form
and will comply with all applicable tender offer rules and
regulations under the Exchange Act. Except as set forth in
Section 2(b) below, the Company and the Trust further agree
to use their best efforts to commence and complete the
Exchange Offer promptly after the Exchange Offer
Registration Statement has become effective, hold the
Exchange Offer open for at least 30 days after the date
notice of the Exchange Offer is mailed to the holders of the
Securities (the "Commencement") and exchange Exchange
Securities for all Securities that have been properly
tendered and not withdrawn on or prior to the expiration of
the Exchange Offer. Except as set forth in Section 2(b)
below, the Company and the Trust agree to use their best
efforts to consummate the Exchange Offer within 180 days
after the Closing Date. The Exchange Offer will be deemed
to have been completed only if the Exchange Securities
received by holders other than Restricted Holders in the
Exchange Offer for Securities are, upon receipt,
transferable by each such holder without restriction under
the Securities Act and the Exchange Act and without material
restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of
America. The Exchange Offer shall be deemed to have been
completed upon the earlier to occur of (i) the Company and
the Trust having exchanged the Exchange Securities for all
outstanding Securities pursuant to the Exchange Offer and
(ii) the Company having exchanged, pursuant to the Exchange
Offer, Exchange Securities for all Securities that have been
properly tendered and not withdrawn before the expiration of
the Exchange Offer, which shall be on a date that is no less
than 30 days following the Commencement of the Exchange
Offer. The Company and the Trust, agree (x) to include in
the registration statement a prospectus for use in
connection with any resales of Exchange Securities by a
holder that is a broker-dealer registered under the Exchange
Act ("broker-dealer") other than resales of Exchange
Securities received by a broker-dealer pursuant to the
Exchange Offer in exchange for Registrable Securities
acquired by such broker-dealer directly from the Trust, and
(y) to keep the Exchange Offer Registration Statement
effective for a period (the "Resale Period") beginning when
Exchange Securities are first issued in the Exchange Offer
and ending upon the earlier of (i) either (a) the expiration
of the 180th day after the Exchange Offer has been completed
or (b) in the event the Company and the Trust have at any
time notified any broker-dealers pursuant to Section
3(f)(ii) hereof, the day beyond the 180th day after the
Exchange Offer has been completed that reflects an
additional period of days equal to the number of days during
all of the periods from and including the dates the Company
and the Trust give notice pursuant to Section 3(f)(ii)(F)
hereof to and including the date when broker-dealers receive
an amended or supplemented prospectus necessary to permit
resales of Exchange Securities or to and including the date
on which the Company and the Trust give notice that the
resale of Exchange Securities under the Exchange Offer
Registration Statement may resume or (ii) such time as such
broker-dealers no longer own any Registrable Securities.
With respect to such registration statement, each broker-
dealer that holds Exchange Securities received in an
Exchange Offer in exchange for Registrable 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.
(b) If (i) because of any change in law or in
currently prevailing interpretations of the staff of the
Commission, the Company and the Trust are not permitted to
effect the Exchange Offer, (ii) the Company shall determine
in good faith there is a reasonable likelihood that, or a
material uncertainty exists as to whether, consummation of
the Exchange Offer would result in an adverse tax
consequence to the Company ( a "Tax Contingency"), (iii) the
Exchange Offer is not consummated within 180 days of the
Closing Date, (iv) certain holders of unregistered Exchange
Securities shall notify the Company and the Trust following
the consummation of the Exchange Offer that (A) such holder
is prohibited by state or federal securities law or
Commission policy from participating in the Exchange Offer
or (B) such holder may not resell the Securities acquired by
it in the Exchange Offer to the public without delivering a
prospectus and the prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available
for such resales by such holder or (C) such holder is a
broker-dealer and holds Securities acquired directly from
the Company, the Trust or an affiliate of the Company, or
the Trust, or (v) in the case of any holder that
participates in the Exchange Offer, such holder does not
receive Exchange Securities on the date of the exchange that
may be sold without restriction under state and Federal
securities laws (other than due solely to the status of such
holder as an affiliate of the Company or the Trust within
the meaning of the Securities Act), then in addition to or
in lieu of conducting the Exchange Offer contemplated by
Section 2(a), the Company and the Trust shall file under the
Securities Act as promptly as practicable a "shelf'
registration statement providing for the registration of,
and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities, pursuant to Rule 415
or any similar rule that may be adopted by the Commission
(the "Shelf Registration"). The Administrators will
promptly deliver to the holders of the Capital Securities,
the Property Trustee and the Delaware Trustee, or the
Company will promptly deliver to the holders of the
Debentures, if not the Trust, written notice that the
Company and the Trust will be complying with the provisions
of this Section 2(b). The Company and the Trust agree to
(i) as promptly as practicable, file a Shelf Registration
covering resales of the Securities, (ii) use their best
efforts to cause the Shelf Registration to become or be
declared effective under the Securities Act and (iii) use
their best efforts to keep such Shelf Registration
continuously effective for a period ending on the earlier of
(i) either (x) three years (or, if Rule 144(k) is amended to
provide a
shorter restrictive period, such shorter period) after the
Effective Time, or (y) in the event the Company and the
Trust have at any time suspended the use of the prospectus
contained in the Shelf Registration pursuant to Section 3(c)
hereof, the date beyond the third anniversary of the
Effective Time that reflects an additional period of days
equal to the number of days during all of the periods from
and including the dates the Company and the Trust give
notice of such suspension pursuant to Section 3(c) to and
including the date when holders of Registrable Securities
receive an amended or supplemented prospectus necessary to
permit resales as Registrable Securities under the Shelf
Registration or to and including the date on which the
Company and Trust give notice that the resale to Registrable
Securities may resume or (ii) such time as there are no
longer any Registrable Securities outstanding. The Company
and the Trust further agree to supplement or make amendments
to the Shelf Registration, as and when required by the
rules, regulations or instructions applicable to the
registration form used by the Company and the Trust for such
Shelf Registration or by the Securities Act or rules and
regulations thereunder for shelf registration, and the
Company and the Trust agree to furnish to the holders of the
Registrable Securities copies of any such supplement or
amendment prior to its being used or promptly following its
filing with the Commission.
(c) In the event that (i) the Exchange Offer
Registration Statement or a registration statement relating
to a Shelf Registration (a "Shelf Registration Statement"),
as the case may be, is not filed with the Commission on or
prior to the 60th day following the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared
effective on or prior to the 150th day following the Closing
Date (unless the Company has previously filed a Shelf
Registration as contemplated herein) or (iii) the Exchange
Offer is not consummated or the Shelf Registration is not
declared effective on or prior to the 180th day following
the Closing Date (any such event a "Registration Default"),
then, as liquidated damages, registration default interest
(the "Registration Default Interest"), in addition to any
other interest due, shall become payable in respect of the
Debentures, and corresponding registration default
Distributions (the "Registration Default Distributions")
shall become payable on the Trust Securities as follows:
(i) if neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement, as the
case may be, is filed with the Commission on or prior
to the 60th day after the Closing Date, then commencing
on the day after either such required filing date,
Registration Default Interest shall accrue on the
principal amount of the Debentures, and Registration
Default Distributions shall accumulate on the
Liquidation Amount of the Trust Securities, at a rate
of 0.25% per annum;
(ii) if (A) the Exchange Offer Registration
Statement is not declared effective by the Commission
on or prior to the 150th day after the Closing Date
(unless the Company has previously filed a Shelf
Registration as contemplated herein) or (B) the Company
has not filed a Shelf Registration on or prior to the
150th day after the Closing Date as contemplated in
2(b) hereof, then commencing on the day after the
applicable required effectiveness date or filing date,
as the case may be, Registration Default Interest shall
accrue on the principal amount of the Debentures, and
Registration Default Distributions shall accumulate on
the Liquidation Amount of the Trust Securities, at a
rate of 0.25% per annum; and
(iii) if (A) the Trust and the Company have not
consummated the Exchange Offer, in accordance with the
terms of the Exchange Offer on or prior to the 180th
day after the Closing Date or (B) if applicable, the
Shelf Registration has not been declared effective on
or prior to the 180th day after the Closing Date or
such Shelf Registration ceases to be effective at any
time prior to the third anniversary of the Closing Date
(other than after such time as there are no longer any
Registrable Securities), then Registration Default
Interest shall accrue on the principal amount of
Debentures, and Registration Default Distributions
shall accumulate on the Liquidation Amount of the Trust
Securities, each at a rate of 0.25% per annum
commencing on (x) the day after the applicable required
date for consummation, in the case of (A) above, or (y)
the day such Shelf Registration is required to be
declared effective or ceases to be effective, as the
case may be, in the case of (B) above;
provided, however, in the event that a Tax Contingency shall
exist on or before the 60th day following the Closing Date,
then clause (i) of this Section 2(c) shall not apply. To
the extent that such a Tax Contingency exists and the Company
has filed a Shelf Registration Statement covering resales of
the Securities by the 150th day following the Closing Date,
then clause (ii) of this Section 2(c) shall not apply, and
to the extent a Tax Contingency exists on the 180th day
following the Closing Date, the period specified in clause
(iii) of this Section 2(c) shall be 240 days; provided,
further, however, that neither the Registration Default
Interest rate on the Debentures, nor the Registration
Default Distributions rate on the Liquidation Amount of the
Trust Securities, shall exceed in the aggregate 0.50% per
annum; and provided, further, however, that (1) upon the
filing of the Exchange Offer Registration Statement, a Shelf
Registration or the occurrence of a Tax Contingency, if
applicable, (in the case of clause (i) above) (2) upon the
effectiveness of the Exchange Offer Registration Statement
or the filing of a Shelf Registration (in the case of clause
(ii) above), or (3) upon the consummation of the Exchange
Offer (in the case of clause (iii) (A) above), or upon the
effectiveness of the Shelf Registration or the effectiveness
of a Shelf Registration which had ceased to remain effective
(in the case of clause (iii) (B) above), Registration
Default Interest on the Debentures, and Registration Default
Distributions on the Liquidation Amount of the Trust
Securities as a result of such clause (or the relevant
subclause thereof), as the case may be, shall cease to
accrue.
(d) Any reference herein to a registration statement
shall be deemed to include any document incorporated therein
by reference as of the applicable Effective Time and any
reference herein to any post-effective amendment to a
registration statement shall be deemed to include any
document incorporated therein by reference as of a time
after such Effective Time.
(e) Notwithstanding any other provisions of this
Registration Rights Agreement, in the event that Debentures
are distributed to holders of Capital Securities in
liquidation of the Trust pursuant to the Trust Agreement (i)
all references in this Section 2 and Section 3 to
Securities, Registrable Securities and Exchange Securities
shall not include the Capital Securities and Guarantee or
Capital Securities and Guarantee issued or to be issued in
exchange therefor in the Exchange Offer, (ii) all
requirements for action to be taken by the Trust in this
Section 2 and Section 3 shall cease to apply and all
requirements for action to be taken by the Company in this
Section 2 and Section 3 shall apply to Debentures and
Debentures issued or to be issued in exchange therefor
in the Exchange Offer.
III. Registration Procedures.
The following provisions shall apply to registration
statements filed pursuant to Section 2:
(a) At or before the Effective Time of the Exchange
Offer or the Shelf Registration, as the case may be, the
Company and the Trust shall qualify the Indenture (if not
already qualified), the Trust Agreement and the Guarantee
under the Trust Indenture Act of 1939.
(b) In connection with the Company's and the Trust's
obligations with respect to the Shelf Registration, if
applicable, the Company and the Trust shall, as soon as
reasonably practicable (or as otherwise specified herein):
(i) prepare and file with the Commission a
registration statement with respect to the Shelf
Registration on any form which may be utilized by the
Trust and the Company and which shall permit the
disposition of the Registrable Securities in accordance
with the intended method or methods thereof, as
specified in writing by the holders of the Registrable
Securities, and use its best efforts to cause such
registration statement to become effective as soon as
practicable thereafter;
(ii) prepare and file with the Commission such
amendments and supplements to such registration
statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of
such registration statement for the period specified in
Section 2(b) hereof and as may be required by the
applicable rules and regulations of the Commission and
the instructions applicable to the form of such
registration statement, and furnish to the holders of
the Registrable Securities copies of any such
supplement or amendment simultaneously with or prior to
its being used or filed with the Commission;
(iii) comply, as to all matters within the
Company's and the Trust's control, with the provisions
of the Securities Act with respect to the disposition
of all of the Registrable Securities covered by such
registration statement in accordance with the intended
methods of disposition by the holders thereof provided
for in such registration statement;
(iv) provide to any of (A) the holders of the
Registrable Securities to be included in such
registration statement, (B) the underwriters (which
term, for purposes of this Registration Rights
Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or
placement agent, if any, therefor, (D) counsel for such
underwriters or agent and (E) not more than one counsel
for all the holders of such Registrable Securities who
so request of the Company in writing the opportunity to
participate in the preparation of such registration
statement, each prospectus included therein or filed
with the Commission and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing
of such registration statement, and throughout the
period specified in Section 2(b), make available at
reasonable times at the Company's principal place of
business or such other reasonable place for inspection
by the persons referred to in Section 3(b)(iv) who
shall certify to the Company and the Trust that they
have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such
financial and other information and books and records
of the Company, and cause the officers, employees,
counsel and independent certified public accountants of
the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective
counsel referred to in such Section, to conduct a
reasonable investigation within the meaning of Section
11 of the Securities Act; provided, however, that each
such party shall be required to maintain in confidence
and not to disclose to any other person any information
or records reasonably designated by the Company in
writing as being confidential, until such time as (A)
such information becomes a matter of public record
(whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such
person shall be required so to disclose such
information pursuant to a subpoena or order of any
court or other governmental agency or body having
jurisdiction over the matter (subject to the
requirements of such order, and only after such person
shall have given the Company prompt prior written
notice of such requirement), or (C) such information is
required to be set forth in such registration statement
or the prospectus included therein or in an amendment
to such registration statement or an amendment or
supplement to such prospectus in order that such
registration statement, prospectus, amendment or
supplement, as the case may be, does not contain an
untrue statement of a material fact or omit to state
therein a material fact required to be stated therein
or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vi) promptly notify the selling holders of
Registrable Securities, the sales or placement agent,
if any, therefor and the managing underwriter or
underwriters, if any, thereof and confirm such advice
in writing, (A) when such registration statement or the
prospectus included therein or any prospectus amendment
or supplement or post-effective amendment has been
filed, and, with respect to such registration statement
or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission
and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any
request by the Commission for amendments or supplements
to such registration statement or prospectus or for
additional information, (C) of the issuance by the
Commission of any stop order suspending the
effectiveness of such registration statement or the
initiation or threatening of any proceedings for that
purpose, (D) if at any time the representations and
warranties of the Company or the Trust contemplated by
Section 3(b)(xv) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by
the Company or the Trust of any notification with
respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for
such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that
such registration statement, prospectus, prospectus
amendment or supplement or post-effective amendment
does not conform in all material respects to the
applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue
statement of a material fact or omits to state any
material fact required to be stated therein or
necessary to make the statements therein not misleading
in light of the circumstances then existing;
(vii) use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of such
registration statement or any post-effective amendment
thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any
holder of Registrable Securities, promptly incorporate
in a prospectus supplement or post-effective amendment
such information as is required by the Securities Act,
Exchange Act and the applicable rules and regulations
of the Commission thereunder and as such managing
underwriter or underwriters, such agent or such holder
specifies should be included therein relating to the
terms of the sale of such Registrable Securities,
including information with respect to the principal
amount of Registrable Securities being sold by such
holder or agent or to any underwriters, the name and
description of such holder, agent or underwriter, the
offering price of such Registrable Securities and any
discount, commission or other compensation payable in
respect thereof, the purchase price being paid therefor
by such underwriters and with respect to any other
terms of the offering of the Registrable Securities to
be sold by such holder or agent or to such
underwriters; and make all required filings of such
prospectus supplement or post-effective amendment
promptly after notification of the matters to be
incorporated in such prospectus supplement or post-
effective amendment;
(ix) furnish to each holder of Registrable
Securities, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(b)(iv) an
executed copy (or, in the case of a holder of
Registrable Securities, a conformed copy) of such
registration statement, each such amendment and
supplement thereto (in each case including all exhibits
thereto (in the case of a holder of Registrable
Securities, upon request) and documents incorporated by
reference therein) and such number of copies of such
registration statement (excluding exhibits thereto and
documents incorporated by reference therein unless
specifically so requested by such holder, agent or
underwriter, as the case may be) and of the prospectus
included in such registration statement (including each
preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable
requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the
Commission thereunder, and such other documents, as
such holder, agent, if any, and underwriter, if any,
may reasonably request in order to facilitate the
offering and disposition of the Registrable Securities
owned by such holder, offered or sold by such agent or
underwritten by such underwriter and to permit such
holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and the
Company and the Trust hereby consent to the use of such
prospectus (including such preliminary and summary
prospectus) and any amendment or supplement thereto by
each such holder and by any such agent and underwriter,
in each case in the form most recently provided to such
person by the Company or the Trust, in connection with
the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary
and summary prospectus) or any supplement or amendment
thereto;
(x) use its best efforts to (A) register or
qualify the Registrable Securities to be included in
such registration statement under such securities laws
or blue sky laws of such United States jurisdictions as
any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request,
(B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in
such jurisdictions during the period the Shelf
Registration is required to remain effective under
Section 2(b) above and for so long as may be necessary
to enable any such holder, agent or underwriter to
complete its distribution of Securities pursuant to
such registration statement but in any event not later
than the date through which the Company and the Trust
are required to keep the Shelf Registration Effective
pursuant to Section 2(b) and (C) take any and all other
actions as may be reasonably requested to enable each
such holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of
such Registrable Securities; provided, however, that
neither the Company nor the Trust shall be required for
any such purpose to (1) qualify as a foreign corporation
in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section
3(b)(x), (2) consent to general service of process in
any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any
agreement between it and its stockholders;
(xi) use its best efforts to obtain the consent or
approval of each governmental agency or authority,
whether federal, state or local, which may be required
to be obtained by the Company or the Trust to effect
the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of,
their Registrable Securities;
(xii) cooperate with the holders of the Registrable
Securities and the managing underwriters, if any, to
facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed
or engraved, or produced by any combination of such
methods, and which shall not bear any restrictive
legends, except as may be required by applicable law;
and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations
and registered in such names as the managing
underwriters may request at least two business days
prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all applicable
Registrable Securities, not later than the Effective
Time;
(xiv) enter into one or more underwriting
agreements, engagement letters, agency agreements,
"best efforts" underwriting agreements or similar
agreements, as appropriate, including customary
provision agreed to by the Company relating to
indemnification and contribution, and take such other
actions in connection therewith as any holders of
Registrable Securities aggregating at least 25% in
aggregate principal amount 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 the Company and the Trust shall not be required to
enter into any such agreement more than once with
respect to all of the Registrable Securities
and may delay entering into such agreement
until the consummation of any underwritten public
offering which the Company shall have then undertaken;
(xv) whether or not an agreement of the type
referred to in Section (3)(b)(xiv) hereof is entered
into and whether or not any portion of the offering
contemplated by such registration statement is an
underwritten offering or is made through a placement or
sales agent or any other entity, (A) make such
representations and warranties to the holders of such
Registrable Securities and the placement or sales
agent, if any, therefor and the underwriters, if any,
thereof in form, substance and scope as are customarily
made by the Company in connection with an offering of
debt securities pursuant to any appropriate agreement
or to a registration statement filed on the form
applicable to the Shelf Registration; (B) obtain an
opinion of counsel to the Company and an opinion of
counsel to the Trust in each case in customary form and
covering such matters, of the type customarily covered
by such an opinion, and in the case of the Company as
customarily given in public offerings of the Company's
debt securities as the managing underwriters, if any,
or as any holders of at least 25% in aggregate
principal amount of the Registrable Securities at the
time outstanding may reasonably request, addressed to
such holder or holders and the placement or sales
agent, if any, therefor and the underwriters, if any,
thereof and dated the effective date of such
registration statement (and if such registration
statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the
date of the closing under the underwriting agreement
relating thereto); (C) obtain a "cold comfort" letter
or letters from the independent certified public
accountants of the Company addressed to the selling
holders of Registrable Securities, the placement or
sales agent, if any, therefor or the underwriters, if
any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of
any prospectus supplement to the prospectus included in
such registration statement or post-effective amendment
to such registration statement which includes audited
financial statements as of a date or for a period
subsequent to that of the latest such statements
included in such prospectus (and, if such registration
statement contemplates an underwritten offering
pursuant to any prospectus supplement to the prospectus
included in such registration statement or post-effective
amendment to such registration statement which includes
unaudited or audited financial statements as of a date
or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date
of the closing under the underwriting agreement
relating thereto), such letter or letters to be in
customary form and covering such matters of the type
customarily covered by letters of such type in public
offerings of debt securities of the Company; (D)
deliver such documents and certificates, including
officers' or trustees' or Administrators' certificates,
as applicable, as may be reasonably requested by any
holders of at least 25% in aggregate principal amount
of the Registrable Securities at the time outstanding
or the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof to evidence
the accuracy of the representations and warranties made
pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained
in the underwriting agreement or other agreement
entered into by the Company or the Trust, as
applicable; and (E) undertake such obligations relating
to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable
Securities of any proposal by the Company and/or the
Trust to amend or waive any provision of this
Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the
case may be;
(xvii) in the event that any broker-dealer
registered under the Exchange Act shall underwrite any
Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules of
Conduct Practice and the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD") or any
successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with
the requirements of such Rules and By-Laws, including
by (A) if such Rules shall so require, permitting a
"qualified independent underwriter" (as defined in such
Schedule (or any successor thereto)) to participate in
the preparation of the registration statement relating
to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such
registration statement is an underwritten offering or
is made through a placement or sales agent, to
recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters
provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in
order for such broker-dealer to comply with the
requirements of the Rules of Conduct of the NASD;
(xviii) make generally available to its security
holders as soon as practicable but in any event not
later than eighteen months after the effective date of
such registration statement, an earning statement of
the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option
of the Company, Rule 158 thereunder);
(xix) on or prior to the Effective Time of the
Shelf Registration, the Company shall use its
reasonable best efforts to have caused the Registrable
Securities to be duly authorized for listing, on the
New York Stock Exchange as a fixed income security (or,
if such listing is unavailable, as an equity security);
and
(xx) use its best efforts to cause the Registrable
Securities covered by the Shelf Registration to be
rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule
436(g)(2) under the Securities Act).
In case any of the foregoing obligations is dependent upon
information provided or to be provided by a party other than
the Company or the Trust, such obligation shall be subject
to the provision of such information.
(c) In the event that the Company and the Trust would
be required, pursuant to Section 3(b)(vi)(F) above, to
notify the selling holders of Registrable Securities, the
placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company and the Trust
shall promptly prepare and furnish to each such holder, to
each placement or sales agent, if any, and to each such
underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing. Each holder of Registrable
Securities agrees that upon receipt of any notice from the
Company or the Trust, pursuant to Section 3(b)(vi)(F)
hereof, such holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the
registration statement applicable to such Registrable
Securities until such holder (i) shall have received copies
of such amended or supplemented prospectus and, if so
directed by the Company or the Trust, such holder shall
deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such
holder's possession of the prospectus covering such
Registrable Securities at the time of receipt of such notice
or (ii) shall have received notice from the Company or the
Trust that the disposition of Registrable Securities
pursuant to the Shelf Registration may continue.
(d) The Company and the Trust may require each holder
of Registrable Securities as to which any registration
pursuant to Section 2(b) is being effected to furnish to the
Company such information regarding such holder and such
holder's intended method of distribution of such Registrable
Securities as the Company and the Trust may from time to
time reasonably request in writing, but only to the extent
that such information is required in order to comply with
the Securities Act. Each such holder agrees to notify the
Company and the Trust as promptly as practicable of any
inaccuracy or change in information previously furnished by
such holder to the Company and the Trust or of the
occurrence of any event in either case as a result of which
any prospectus relating to such registration contains or
would contain an untrue statement of a material fact
regarding such holder or such holder's intended method of
disposition of such Registrable Securities or omits to state
any material fact regarding such holder or such holder's
intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make
the statements therein not misleading in light
of the circumstances then existing,
and promptly to furnish to the Company and the Trust any
additional information required to correct and update any
previously furnished information or required so that such
prospectus shall not contain, with respect to such holder or
the disposition of such Registrable Securities, an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances then existing.
(e) Until the expiration of three years after the
Closing Date, the Company will not, and will not permit any
of its "affiliates" (as defined in Rule 144) to, resell any
of the Capital Securities or Debentures that have been
reacquired by any of them except pursuant to an effective
registration statement or exemption under the Act.
(f) In connection with the Company's and the Trust's
obligations with respect to the registration of Exchange
Securities as contemplated by Section 2(a) (the "Exchange
Registration"), if applicable, the Company and the Trust
shall, as soon as reasonably practicable (or as otherwise
specified):
(i) prepare and file with the Commission such
amendments and supplements to the Exchange Offer
Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the
effectiveness thereof for the periods and purposes
contemplated in Section 2(a) hereof and as may be
required by the applicable rules and regulations of the
Commission and the instructions applicable to the form
of the Exchange Offer Registration Statement, and
promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in
conformity in all material respects with the
requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the
Commission 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. Notwithstanding the foregoing, the Company
shall not be required to amend or supplement a Shelf
Registration, any related prospectus or any document
incorporated therein by reference in the event that,
for a period not to exceed an aggregate of 90 days (or
an aggregate of 120 days in any consecutive 18 month
period) if (x) an event occurs and is continuing as a
result of which a Shelf Registration, any related
prospectus or any document incorporated therein by
reference as then amended or supplemented would, in the
Company's good faith judgment, contain an untrue
statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they
were made, not misleading, and (y) (1) the Company
determines in good faith that the disclosure of such
event at such time would have a material adverse effect
on the business, operations or prospects of the Company
and the Trust or (2) the disclosure otherwise related
to a pending financing, acquisition, divestiture,
corporate reorganization or other material business
transaction which has not yet been publicly disclosed
in any relevant jurisdiction;
(ii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included
in the Exchange Offer Registration Statement, and
confirm such advice in writing, (A) when the Exchange
Offer Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with
respect to the Exchange Offer Registration Statement or
any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by
the Blue Sky or securities commissioner or regulator of
any state with respect thereto or any request by the
Commission for amendments or supplements to the
Exchange Offer Registration Statement or prospectus or
for additional information, (C) of the issuance by the
Commission of any stop order suspending the
effectiveness of the Exchange Offer Registration
Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations and warranties of the Company and/or
the Trust contemplated by Section 5 cease to be true
and correct in all material respects, (E) of the
receipt by the Company or the Trust of any notification
with respect to the suspension of the qualification of
the Exchange Securities for sale in any United States
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during
the Resale Period when a prospectus is required to be
delivered under the Securities Act, that the Exchange
Offer Registration Statement, prospectus, prospectus
amendment or supplement of post-effective amendment
does not conform in all material respects to the
applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue
statement of a material fact or omits to state a
material fact required to be stated therein or
necessary to make the statements therein not misleading
in light of the circumstances then existing;
(iii) in the event that the Company and the Trust
would be required, pursuant to Section 3(f)(ii)(F)
above, to notify any broker-dealers holding Exchange
Securities, promptly prepare and furnish to each such
holder a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform
in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder
and shall not contain an untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading in light of the circumstances
then existing or notify such broker-dealers that the
date of Exchange Securities pursuant to the Exchange
Offer Registration Statement may continue;
(iv) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of
the Exchange Offer Registration Statement or any post-
effective amendment thereto at the earliest practicable
date;
(v) use its best efforts to (A) register or
qualify the Exchange Securities under the securities
laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply
with such laws so as to permit the continuance of
offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period
and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to
consummate the disposition thereof in such
jurisdictions; provided, however, that
neither the Company nor the Trust shall be required for
any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the
requirements of this Section 3(f)(v), (2) consent to
general service of process in any such jurisdiction or
(3) make any changes to its certificate of
incorporation or by-laws or any agreement between it
and its stockholders;
(vi) use its best efforts to obtain the consent or
approval of each United States governmental agency or
authority, whether federal, state or local, which may
be required to be obtained by the Company or the Trust
to effect the Exchange Registration, the Exchange Offer
and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(vii) provide a CUSIP number for all applicable
Exchange Securities, not later than the applicable
Effective Time;
(viii) make generally available to its security
holders as soon as practicable but no later than
eighteen months after the effective date of such
registration statement, an earning statement of the
Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option
of the Company, Rule 158 thereunder);
(ix) on or prior to the Effective Time of the
Exchange Offer Registration Statement, the Company
shall use its reasonable best efforts to have caused
the Exchange Securities to be duly authorized for
listing, subject to official notice of issuance, on the
New York Stock Exchange as a fixed income security (or,
if such listing is unavailable, as an equity security);
and
(x) use its best efforts to cause the Exchange
Securities covered by the Exchange Offer Registration
Statement to be rated by two nationally recognized
statistical rating organizations (as such term is
defined in Rule 436(g)(2) under the Securities Act.
In case any of the foregoing obligations is dependent upon
information provided or to be provided by a party other than
the Company or the Trust, such obligation shall be subject
to the provision of such information.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be
paid promptly upon request being made therefor all expenses
incident to the Company's and the Trust's performance of or
compliance with this Registration Rights Agreement,
including (a) all Commission and any NASD registration and
filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities or
Exchange Securities for offering and sale under the State
securities and blue sky laws referred to in Section 3(b)(x)
and Section 3(f)(v) hereof, including reasonable fees and
disbursements of one counsel for the placement or sales
agent or underwriters in connection with such
qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each
registration statement required to be filed hereunder, each
prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the
foregoing, the certificates representing the Securities and
all other documents relating hereto, (d) messenger and
delivery expenses, (e) fees and expenses of the Trustee
under the Indenture, the Property Trustee and Debenture
Trustee under the Trust Agreement and the Guarantee Trustee
under the Guarantee and of any escrow agent or custodian,
(f) internal expenses (including all salaries and expenses
of the Company's officers and employees performing legal or
accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the
Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance
and compliance), (h) reasonable 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 principal amount of the Registrable Securities
being registered, and fees, expenses and disbursements of
any other persons, including special experts, retained by
the Company in connection with such registration, (i) all
application and filing fees in connection with listing the
Exchange Securities or Registrable Securities on a national
exchange or automated quotation system pursuant to the
requirements hereof, and (j) all fees and disbursements of
independent certified public accountants of the Company
(including the expenses of any special audit and comfort
letters required by or incident to
such performance) (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses
are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or
underwriter thereof, the Company shall reimburse such person
for the full amount of the Registration Expenses so
incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the
holders of the Registrable Securities being registered shall
pay all agency fees and commissions and underwriting
discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and
experts specifically referred to above.
5. Representations and Warranties.
Each of the Company and the Trust represents and
warrants to, and agrees with, the Initial Purchasers and
each of the holders from time to time of Registrable
Securities that:
(a) Each registration statement covering
Registrable Securities and each prospectus (including
any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or
Section 3(f) hereof and any further amendments or
supplements to any such registration statement or
prospectus, when it becomes effective or is filed with
the Commission, as the case may be, and, in the case of
an underwritten offering of Registrable Securities, at
the time of the closing under the underwriting
agreement relating thereto, will conform in all
material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to
be delivered under the Securities Act, other than from
(i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(b)(vi)(F)
or Section 3(f)(ii)(F) hereof until (ii) such time as
the Company furnishes an amended or supplemented
prospectus pursuant to Section 3(c) or Section
3(f)(iii) hereof, each such registration
statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to
Section 3(b) or Section 3(f) hereof, as then amended or
supplemented, will conform in all material respects to
the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations
of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not misleading
in the light of the circumstances then existing;
provided, however, that this representation and
warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with
information furnished in writing to the Company and the
Trust by a holder of Registrable Securities expressly
for use therein.
(b) Any documents incorporated by reference in
any prospectus referred to in Section 5(a) hereof, when
they become or became effective or are or were filed
with the Commission, as the case may be, will conform
or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain
or contained an untrue statement of a material fact or
will omit or omitted to state a material fact required
to be stated therein or necessary to make the
statements therein not misleading; provided, however,
that this representation and warranty shall not apply
to any statements or omissions made in reliance upon
and in conformity with information furnished in writing
to the Company by a holder of Registrable Securities
expressly for use therein.
(c) The compliance by the Company and the Trust
with all of the provisions of this Registration Rights
Agreement and the consummation of the transactions
herein contemplated will not, as of the date hereof,
(A) conflict with or result in a breach of any of the
terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both,
would constitute a default) or require consent under,
or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
the Guarantor or any of its subsidiaries considered as
one enterprise or the Trust, as applicable, pursuant
to, the terms of any contract, agreement, indenture,
mortgage, loan agreement, note, lease or other
instrument, franchise, license or permit to which
the Guarantor or any of its subsidiaries, or
the Trust, as applicable, is a party or
by which the Guarantor or any of its
subsidiaries, or the Trust, as applicable, or their
respective properties or assets may be bound or subject
and that is material to the Guarantor and its
subsidiaries considered as one enterprise, or the
Trust, as applicable, or (B) violate or conflict with
any provision of the certificate of incorporation or
by-laws of the Guarantor or any of its subsidiaries, or
the Trust Agreement of the Trust, or any law, judgment,
decree, order, statute, rule or regulation of any court
or any public, governmental or regulatory agency or
body or any arbitrator having jurisdiction over the
Guarantor or any of its subsidiaries, or the Trust, as
applicable, or any of their respective properties or
assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit
of or with any court or any public, governmental or
regulatory agency or body having jurisdiction over the
Guarantor or any of its subsidiaries, or the Trust, as
applicable, or any of their respective properties or
assets, is required for the execution, delivery and
performance of the Registration Rights Agreement and
the compliance with the provisions hereof and thereof,
except such as may be required under applicable state
securities or "blue sky" laws and such consents,
approvals, authorizations, registrations and
qualifications as may be required under the Securities
Act, the Trust Indenture Act and state securities or
"blue sky" laws in connection with the exchange offer
or resale registration statement contemplated in this
Registration Rights Agreement.
(d) This Registration Rights Agreement has been
duly authorized, executed and delivered by the Company
or the Trust, as applicable.
6. Indemnification.
(a) The Trust and the Company, jointly and severally,
agree to indemnify and hold harmless (i) each holder, (ii)
each person, if any, who controls a holder within the
meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act and (iii) the respective officers,
directors, partners, employees, representatives and agents
of any holder or any controlling person to the fullest
extent lawful, from and against any and all losses,
liabilities, claims, damages and expenses whatsoever
(including but not limited to attorneys' fees
and any and all expenses whatsoever incurred
in investigating, preparing or defending against any
investigation or litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they
or any of them may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon 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, or in any supplement thereto or amendment
thereof, 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, in the light of the circumstances under which they
were made, not misleading; provided, however, that the
Company and the Trust will not be liable in any such case to
the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of such holder
expressly for use therein. This indemnity agreement will be
in addition to any liability which the Trust and the Company
may otherwise have, including, under this Agreement.
(b) Each holder, severally and not jointly,
agrees to indemnify and hold harmless the Trust, the
Company, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, against any losses, liabilities,
claims, damages and expenses whatsoever (including but not
limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending
against any investigation or litigation, commenced or
threatened, or any claim whatsoever and any and all amounts
paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are
based upon 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, or in any amendment thereof 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, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but
only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on
behalf of such holder expressly for use therein. This
indemnity will be in addition to any liability which a
holder may otherwise have, including under this Agreement.
In no event, however, shall the liability of any selling
holder hereunder be greater in amount than the dollar amount
of the proceeds received by such holder upon its sale of the
Registrable Securities giving rise to such indemnification
obligation.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability
which it may have under this Section 6 except to the extent
that it has been prejudiced in any material respect by such
failure or from any liability which it may otherwise have).
In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may
elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have
been authorized in writing by the indemnifying parties in
connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable
time after notice of commencement of the action,
or (iii) such indemnified party or parties
shall have reasonably concluded that there may be
defenses available to it or them which are different from or
additional to those available to one or all of the
indemnifying parties (in which case the indemnifying party
or parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties),
in any of which events such fees and expenses of counsel
shall be borne by the indemnifying parties; provided,
however, that the indemnifying party under subsection (a) or
(b) above, shall only be liable for the legal expenses of
one counsel (in addition to any local counsel) for all
indemnified parties in each jurisdiction in which any claim
or action is brought. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected
without its written consent; provided, however, that such
consent was not unreasonably withheld.
(d) In order to provide for contribution in
circumstances in which the indemnification provided for in
this Section 6 is for any reason held to be unavailable from
the Company or the Trust or is insufficient to hold harmless
a party indemnified thereunder, the Company, Trust and each
holder shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature contemplated
by such indemnification provision (including any
investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and the
Trust, any contribution received by the Company and the
Trust from persons, other than the holders, who may also be
liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) to which the Company and
any holder may be subject, in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Trust from the offering of Securities and
any such holder from its sale of Securities or, if such
allocation is not permitted by applicable law or
indemnification is not available as a result of the
indemnifying party not having received notice as provided in
this Section 6, in such proportion as is appropriate to
reflect not only the relative benefits referred to above but
also the relative fault of the Company, the Trust and the
holders in connection with the statements or omissions which
resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by
the Company, the Trust and any holder shall be deemed to be
in the same proportion as (x) the total proceeds from the
offering of the Securities (net of discounts but before
deducting expenses) received by the Company and (y) the
total proceeds received by such holder upon its sale of
Securities which would otherwise give rise to the
indemnification obligation, respectively. The relative
fault of the Company, the Trust and of the holders shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by the Company, the Trust or
the holders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission. The Company, the Trust and each
holder agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by
pro rata allocation or by any other method of allocation
which does not take into account the equitable
considerations referred to above. Notwithstanding the
provisions of this Section 6, (i) no holder shall be
required to contribute, in the aggregate, any amount in
excess of the amount by which the total received by such
holder with respect to the sale of its Securities exceeds
the sum of (A) the amount paid by such holder for such
Securities plus (B) the amount of any damages which such
holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 1l(f) of
the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6, (A) each person, if any, who
controls a holder within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and (B) the
respective officers, directors, partners, employees,
representatives and agents of a holder or any controlling
person shall have the same rights to contribution as such
holder, and each person, if any, who controls the Company
and the Trust within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights
to contribution as the Company and the Trust, subject in
each case to clauses (i) and (ii) of this Section 6(d). Any
party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for
contribution may be made against another party or parties
under this Section 6, notify such party or
parties from whom contribution may be
sought, but the failure to so notify such party or parties
shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they
may have under this Section 6 or otherwise. No party shall
be liable for contribution with respect to any action or
claim settled without its written consent; provided,
however, that such written consent was not unreasonably
withheld.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the
Registrable Securities covered by the Shelf Registration are
to be sold pursuant to an underwritten offering, the
managing underwriter or underwriters thereof shall be
designated by the holders of at least a majority in
aggregate principal amount of the Registrable Securities to
be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b) Participation by Holders. Each holder of
Registrable Securities hereby agrees with each other such
holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the
basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements
and (ii) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such under-
writing arrangements.
8. Rule 144. The Company covenants to the
holders of Registrable Securities that the Company shall use
its best efforts to timely file the reports required to be
filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the
rules and regulations adopted by the Commission thereunder,
and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the
extent required from time to time to enable such holder to
sell Registrable Securities without registration under the
Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted
by the Commission. Upon the request of
any holder of Registrable Securities in connection with that
holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it
has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Company
and the Trust represents, warrants, covenants and agrees
that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities which would be
inconsistent with the terms contained in this Registration
Rights Agreement.
(b) Specific Performance. The parties hereto
acknowledge that there would be no adequate remedy at law if
any party fails to perform any of its obligations hereunder
and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition
to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of
the obligations of any other party under this Exchange and
Registration Rights Agreement in accordance with the terms
and conditions of this Exchange and Registration Rights
Agreement, in any court of the United States or any State
thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in
writing and shall be deemed to have been duly given when
delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested)
as follows: If to the Company, to it at The Bear Xxxxxxx
Companies Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxxxxx-Xxxxx; if to the Trust, to it at
The Chase Manhattan Bank, Attention: Corporate Trust
Administration; and if to a holder, to the address of such
holder set forth in the security register or other records
of the Trust or the Company, as the case may be, or to such
other address as the Company, the Trust or any such holder
may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be
effective only upon receipt.
(d) Parties in Interest. All the terms and provisions
of this Registration Rights Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto.
In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities,
in any manner, whether by gift, bequest, purchase, operation
of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a party
hereto for all purposes and such Registrable Securities
shall be held subject to all of the terms of this
Registration Rights Agreement, and by taking and holding
such Registrable Securities such transferee shall be
entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by and to perform, all of
the applicable terms and provisions of this Registration
Rights Agreement.
(e) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set
forth in this Registration Rights Agreement or made pursuant
hereto shall remain in full force and effect regardless of
any investigation (or statement as to the results thereof)
made by or on behalf of any holder of Registrable
Securities, any director, officer or partner of such holder,
any agent or underwriter or any director, officer or partner
thereof, or any controlling person of any of the foregoing,
and shall survive delivery of and payment for the
Registrable Securities pursuant to the Purchase Agreement
and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several
Sections and paragraphs of this Registration Rights
Agreement are inserted for convenience only, do not
constitute a part of this Registration Rights Agreement and
shall not affect in any way the meaning or interpretation of
this Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Registration
Rights Agreement and the other writings referred to herein
(including the Trust Agreement, the Guarantee and the
Indenture) or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with
respect to its subject matter. This Registration Rights
Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter.
This Registration Rights Agreement may be amended and the
observance of any term of this Registration Rights Agreement
may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written
instrument duly executed by the Company, the Trust and the
holders of at least a majority in aggregate principal amount
of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or
waiver effected pursuant to this Section 9(h), whether or
not any notice, writing or marking indicating such amendment
or waiver appears on such Registrable Securities or is
delivered to such holder.
(i) Inspection. For so long as this Registration
Rights Agreement shall be in effect, this Registration
Rights Agreement and a complete list of the names and
addresses of all the holders of Registrable Securities shall
be made available for inspection and copying on any business
day by any holder of Registrable Securities for proper
purposes only (which shall include any purpose related to
the rights of the holders of Registrable Securities under
the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof set forth in
Section 9(c) above, at the office of the Property Trustee or
at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by
the parties in counterparts, each of which shall be deemed
to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
[Remainder of page intentionally blank]
Agreed to and accepted as of the date referred to
above.
BEAR XXXXXXX CAPITAL TRUST I
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx, as Administrator
THE BEAR XXXXXXX COMPANIES INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx
President and Chief
Executive Officer
BEAR, XXXXXXX & CO. INC.
CHASE SECURITIES INC.
XXXXXXX, XXXXX & CO.
X.X. XXXXXX SECURITIES INC.
NATIONSBANC CAPITAL MARKETS, INC.
By: BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx
President and Chief
Executive Officer
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