FIRST NIAGARA FINANCIAL GROUP, INC. REGISTRATION RIGHTS AGREEMENT Dated September 4, 2009
Exhibit 2.3
PRIVILEGED AND CONFIDENTIAL
WLRK DRAFT: 9/1/09
WLRK DRAFT: 9/1/09
FIRST NIAGARA FINANCIAL GROUP, INC.
Dated September 4, 2009
TABLE OF CONTENTS
| Page | ||||||
SECTION 1. |
Definitions | 1 | ||||
SECTION 2. |
Securities Subject to this Agreement | 3 | ||||
SECTION 3. |
Shelf Registration | 4 | ||||
SECTION 4. |
Demand Registration | 7 | ||||
SECTION 5. |
Registration Procedures | 8 | ||||
SECTION 6. |
Registration Expenses | 13 | ||||
SECTION 7. |
Indemnification; Contribution | 13 | ||||
SECTION 8. |
Rule 144 | 16 | ||||
SECTION 9. |
Miscellaneous | 16 | ||||
This Registration Rights Agreement, dated as of September 4, 2009 (this “Agreement”), by and
between First Niagara Financial Group, Inc., a Delaware corporation (the “Company”) and National
City Bank, a national banking association organized under the laws of the United States (the
“Purchaser”).
WHEREAS, the Company, the Purchaser and The PNC Financial Services Group, Inc., a Pennsylvania
corporation, have entered into that certain Securities Purchase Agreement, dated as of April 6,
2009 (the “Securities Purchase Agreement”), pursuant to which the Purchaser will acquire from the
Company $150,000,000 in principal amount of 12% Senior Notes due 2014 (the “Senior Notes”); and
WHEREAS, the parties’ entering into this Agreement is a condition to the respective
obligations of the Purchaser to purchase and pay for the Senior Notes under the Securities Purchase
Agreement;
NOW, THEREFORE, the Company and the Purchaser, intending to be legally bound, hereby agree,
effective as of the date hereof, as follows:
The parties hereby agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following terms will have the following meanings:
“Affiliate” of any specified person means any other person which, directly or indirectly, is
in control of, is controlled by, or is under common control with, such specified person. For
purposes of this definition, control of a person means the power, direct or indirect, to direct or
cause the direction of the management and policies of such person whether by contract or otherwise;
the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agreement” has the meaning set forth in the Preamble.
“Beneficial Ownership” by a Person of any securities includes ownership by any Person who,
directly or indirectly, through any contract, arrangement, understanding, relationship or
otherwise, has or shares (i) voting power which includes the power to vote, or to direct the voting
of, such security; and/or (ii) investment power which includes the power to dispose, or to direct
the disposition, of such security; and shall otherwise be interpreted in accordance with the term
“beneficial ownership” as defined in Rule 13d-3 adopted by the SEC under the Exchange Act. The
term “Beneficially Own” shall have a correlative meaning.
“Business Day” means a day, other than a Saturday or Sunday, that in the City of New York, is
not a day on which banking institutions are authorized or required by law, regulation or executive
order to close.
“Company” has the meaning set forth in the Preamble.
“Demand Notice” has the meaning set forth in Section 4.1.
“Demand Registration” has the meaning set forth in Section 4.1.
“Demand Registration Statement” has the meaning set forth in Section 4.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
the rules and regulations promulgated thereunder from time to time.
“Existing Shelf Registration Statement” has the meaning set forth in Section 3.1(a).
“Governmental Authority” means the government of the United States of America or any state or
other political subdivision thereof, or any other jurisdiction in which the Company or any
subsidiary of the Company conducts all or any part of its business, or which asserts jurisdiction
over any properties of the Company or any subsidiary of the Company, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any
such government.
“Holder” means a Person who owns, beneficially or otherwise, Registrable Securities.
“Holders’ Representative” means the Purchaser or any other Holder of a Majority of a class of
Registrable Securities.
“Indemnified Party” shall have the meaning set forth in Section 7.3(a).
“Indemnifying Party” shall have the meaning set forth in Section 7.3(a).
“Indenture” means that certain Indenture, dated as of September 4, 2009, as supplemented by
the First Supplemental Indenture, dated as of September 4, 2009, by and between the Company and The
Bank of New York Mellon, as trustee, relating to the Senior Notes.
“Majority” means more than 50%.
“Notice and Questionnaire” means a written notice executed by a respective Holder and
delivered to the Company containing the information required to be included in any Shelf
Registration Statement regarding the applicable Holder seeking to sell Senior Notes thereunder
pursuant thereto.
“Person” means any individual, partnership, corporation, limited liability company, firm,
corporation, association, joint venture, trust or other entity, or any Governmental Authority.
“Plan of Distribution” has the meaning set forth in Section 5.2(e).
“Prospectus” means the prospectus included in a Shelf Registration Statement or Subsequent
Shelf Registration Statement, as amended or supplemented by any prospectus
2
supplement and by all other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such prospectus.
“Purchaser” has the meaning set forth in the Preamble.
“Registration Expenses” has the meaning set forth in Section 6.1.
“Registrable Securities” means the Senior Notes acquired by the Purchaser pursuant to the
Securities Purchase Agreement, as well as any securities of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to or in replacement generally of, such Senior Notes (or other
Registrable Securities) and any securities issued in exchange for such Senior Notes (or other
Registrable Securities) in any merger, reorganization, consolidation, share exchange,
recapitalization, restructuring or other comparable transaction of the Company, until such
Registrable Securities cease to be Registrable Securities in accordance with Section 2.1.
“Registration Statement” means any registration statement of the Company under the Securities
Act, including a Shelf Registration Statement, a Subsequent Shelf Registration Statement or a
Demand Registration Statement, which permits the public offering of any of the Registrable
Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference in such
registration statement.
“SEC” means the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act and the Exchange Act.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.
“Securities Purchase Agreement” has the meaning set forth in the Recitals to this Agreement.
“Senior Notes” has the meaning set forth in the Recitals to this Agreement.
“Shelf Effectiveness Period” has the meaning set forth in Section 3.1(c).
“Shelf Registration Statement” has the meaning set forth in Section 3.1(a).
“Subsequent Shelf Registration Statement” has the meaning set forth in Section 3.2.
“Suspension Period” has the meaning set forth in Section 5.2(b).
SECTION 2. Securities Subject to this Agreement.
Section 2.1 The securities entitled to the benefits of this Agreement are the Registrable
Securities but, with respect to any particular Registrable Security, for only so long as such
3
security continues to be a Registrable Security as provided below. A Registrable Security
shall cease to be a Registrable Security (i) when it has been disposed of in a transaction
registered under the Securities Act, (ii) when it has been sold pursuant to Rule 144 under the
Securities Act, (iii) an opinion of counsel to the Company (the form and scope of which shall be
reasonably satisfactory to the holder of such Registrable Security) shall have been delivered to
such holder, or an opinion of counsel to the holder of such Registrable Security (the form and
scope of which shall be reasonably satisfactory to the Company), shall have been delivered to the
Company, in either case to the effect that such Registrable Security may be publicly offered for
sale in the United States without restriction as to manner of sale and amount of securities sold
and without registration or other restriction under the Securities Act, and the Company shall have
delivered replacement certificates for such securities that do not bear any restrictive legend;
provided, however, that, prior to the date that is one year after the date of this Agreement, a
Registrable Security shall in no event be deemed to have ceased to be a Registrable Security
pursuant to this clause (iii), (iv) it has been sold or transferred in a private transaction in
which the transferor’s rights under this Agreement are not assigned to the transferee as specified
in Section 9.4 or (v) following a notice of redemption issued pursuant to Section 4.02 of the
Indenture, unless and until such notice is canceled by the Company pursuant to the terms of Section
4.02 of the Indenture.
Section 2.2 Without the prior written consent of the Holders of a Majority of the Registrable
Securities, the Company will not enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. As of the date hereof, this Agreement is the only agreement with any holder
of any securities of the Company which grants registration rights with respect to securities of the
Company.
SECTION 3. Shelf Registration.
Section 3.1 In order to effect the registration and to permit the sale of the Registrable
Securities in accordance with the intended method of disposition thereof the Company will (except
as the Holders’ Representative may otherwise request pursuant to Section 4.1):
(a) as promptly as practicable after the date of this Agreement as can be accomplished
given the best efforts by each of the Company, the Purchaser and their respective
representatives to effect the appropriate disclosure, and in any event no later than the
date that is 75 days after the date of this Agreement, prepare and file with the SEC a
registration statement on Form S-3 or any comparable or successor form or forms (or to the
extent the Company is not eligible to use Form S-3 or any comparable or successor form or
forms, on Form S-1 or any comparable or successor form or forms) pursuant to Rule 415 under
the Securities Act or any similar rule that may be adopted by the SEC (the “Shelf
Registration Statement”), which Shelf Registration Statement shall provide for the
registration and resales, on a continuous or delayed basis, of all Registrable Securities;
provided, however, that before filing a registration statement or prospectus or prospectus
supplement or any amendments or supplements thereto, the Company will furnish to each of the
Holders named therein, draft copies of all such documents proposed to be filed a reasonable
period prior to such filing, which documents
4
will be subject to the reasonable review and comment of each of such Holder and its
agents and representatives, and the Company shall consider in good faith any comments on any
such documents suggested by any of the foregoing persons; provided, further, that if the
Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) at
the time of filing of the Shelf Registration Statement with the SEC, such Shelf Registration
Statement shall be designated by the Company as an automatic shelf registration statement
(as defined in Rule 405 under the Securities Act); and provided, further, that the Company
shall use its commercially reasonable efforts, for so long as there are Registrable
Securities outstanding, to take such actions as are under its control to not become an
ineligible issuer (as defined in Rule 405 under the Securities Act) and to remain a
well-known seasoned issuer (as defined in Rule 405 under the Securities Act) if it has such
status as of the date of this Agreement or becomes eligible for such status in the future.
Notwithstanding the foregoing, the Company’s obligation under this Section 3.1(a) to file a
Shelf Registration Statement with respect to the Senior Notes shall be deemed satisfied by
virtue of the Company’s previous filing of an automatically effective shelf registration
statement on Form S-3ASR, as amended, (File No. 333-153640) to the extent that such shelf
registration statement remains effective and not subject to any stop order suspending its
effectiveness under the Securities Act and continues to provide for registration and resales
of debt securities of the Company on a continuous or delayed basis (the “Existing Shelf
Registration Statement”). References in this Agreement to the Shelf Registration Statement
shall mean, as appropriate, the Existing Shelf Registration Statement and any post-effective
amendments thereto.
(b) in the event that the Shelf Registration Statement is not an automatic shelf
registration statement, use commercially reasonable efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act by the SEC as promptly as
practicable and in no event later than the date that is 180 days after the date of this
Agreement; and
(c) use commercially reasonable efforts to keep the Shelf Registration Statement or any
Subsequent Shelf Registration Statement continuously effective, supplemented and amended as
required by the Securities Act and by the provisions of Section 5.2 hereof to the extent
necessary to ensure that (i) it is available for resales by the Holders named therein and
(ii) conforms with the requirements of this Agreement and the Securities Act and the rules
and regulations of the SEC promulgated thereunder as announced from time to time, until the
date on which all Registrable Securities registered on the Shelf Registration Statement have
been sold or have ceased to be Registrable Securities (the “Shelf Effectiveness Period”).
Section 3.2 If the Shelf Registration Statement or any Subsequent Shelf Registration Statement
ceases to be effective for any reason at any time during the Shelf Effectiveness Period (other than
because all Registrable Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall use commercially
reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness
thereof or file an additional Shelf Registration Statement covering all of the securities that as
of the date of such filing are Registrable Securities (a “Subsequent Shelf
5
Registration Statement”). If a Subsequent Shelf Registration Statement is filed, to the
extent the Shelf Registration Statement is not automatically effective upon filing, the Company
shall use commercially reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable and in any event no later than 75 days after such
filing and to keep such Subsequent Shelf Registration Statement (or other Subsequent Shelf
Registration Statement) continuously effective until the end of the Shelf Effectiveness Period.
Section 3.3 At the time the Shelf Registration Statement or any Subsequent Shelf Registration
Statement is declared effective, if applicable, or at the time that supplements to the Existing
Shelf Registration Statement are filed with the SEC, or any Subsequent Shelf Registration Statement
is filed with the SEC if it is automatically effective, each Holder that has delivered a Notice and
Questionnaire to the Company on or prior to the date that is five (5) Business Days prior to such
time of effectiveness shall be named as a selling securityholder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable law.
Section 3.4 The Company shall use commercially reasonable efforts to, on a timely basis,
supplement and amend the Shelf Registration Statement or any Subsequent Shelf Registration
Statement if required by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or any Subsequent Shelf Registration
Statement, if required by the Securities Act or as reasonably requested by any Holder covered by
such Shelf Registration Statement.
Section 3.5 Each Holder agrees that if such Holder wishes to sell Registrable Securities
pursuant to a Shelf Registration Statement or a Subsequent Shelf Registration Statement and related
Prospectus, it will do so in accordance with this Section 3.5 and Section 5.2. Each Holder wishing
to sell Registrable Securities pursuant to a Shelf Registration Statement or any Subsequent Shelf
Registration Statement and related Prospectus, whether in an underwritten offering or otherwise,
agrees to deliver a Notice and Questionnaire to the Company at least ten (10) Business Days prior
to any intended distribution of Registrable Securities under the Shelf Registration Statement or a
Subsequent Shelf Registration Statement, it being agreed that if any Holder intends to distribute
any Registrable Securities by means of an underwritten offering it shall promptly so advise the
Company and the Company shall take all reasonable steps to facilitate such distribution, including
the actions required pursuant to Section 5.2(j). From and after the date the Shelf Registration
Statement or a Subsequent Shelf Registration Statement is declared effective the Company shall, as
promptly as practicable after the date a Notice and Questionnaire is delivered to it, and in any
event upon the later of (x) fifteen (15) Business Days after such date (but no earlier than the
fifteenth (15th) Business Days after effectiveness) or (y) fifteen (15) Business Days after the
expiration of any Suspension Period in effect when the Notice and Questionnaire is delivered or put
into effect within fifteen (15) Business Days of such delivery date:
(a) if required by applicable law, file with the SEC a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law, file a
supplement to the related Prospectus or a supplement or amendment to any
6
document incorporated therein by reference or file any other required document so that
the Holder delivering such Notice and Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of Registrable Securities in accordance
with applicable law and, if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use commercially reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly as is practicable;
(b) provide such Holder copies of any documents filed pursuant to Section 3.5(a); and
(c) notify such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section 3.5(a);
provided that, if such Notice and Questionnaire is delivered during a Suspension Period, the
Company shall so inform the Holder delivering such Notice and Questionnaire and shall take the
actions set forth in clauses (a), (b) and (c) above upon expiration of the Suspension Period in
accordance with Section 5.2. Notwithstanding anything contained herein to the contrary, the
Company shall be under no obligation to name any Holder that has not delivered a Notice and
Questionnaire to the Company as a selling securityholder in any Shelf Registration Statement or
related Prospectus.
SECTION 4. Demand Registration.
Section 4.1 If the Company is unable to file, cause to be effective or maintain the
effectiveness of a Shelf Registration Statement or Subsequent Shelf Registration Statement as
required under Section 3, the Holders’ Representative shall have the right by delivering a written
notice to the Company (a “Demand Notice”) to require the Company to, pursuant to the terms of this
Agreement, register under and in accordance with the provisions of the Securities Act, the number
of Registrable Securities Beneficially Owned by any Holders and requested by such Demand Notice to
be so registered (a “Demand Registration”); provided, however, that a Demand Notice may only be
made if the sale of the Registrable Securities requested to be registered by the Holders’
Representative is reasonably expected to result in aggregate gross cash proceeds in excess of
$15,000,000 (without regard to any underwriting discount or commission). A Demand Notice shall
also specify the expected method or methods of disposition of the applicable Registrable
Securities, it being agreed that if any Holder intends to distribute any Registrable Securities by
means of an underwritten offering it shall promptly so advise the Company and the Company shall
take all reasonable steps to facilitate such distribution, including the actions required pursuant
to Section 5.2(j). Following receipt of a Demand Notice, the Company shall use its commercially
reasonable efforts to file, as promptly as practicable as can be accomplished given the best
efforts by both the Company, the Holders and their respective representatives to effect the
appropriate disclosure, and in any event no later than 75 days after the date of such Demand Notice
(subject to Section 5.2(b) hereof), a registration statement on Form S-3 or any comparable or
successor form or forms (or to the extent the
7
Company is not eligible to use Form S-3 or any comparable or successor form or forms, on Form
S-1 or any comparable or successor form or forms), relating to the offer and sale of the
Registrable Securities requested to be included therein by the Holders thereof in accordance with
the methods of distribution elected by such Holders (a “Demand Registration Statement”) and shall
use its commercially reasonable efforts to cause such Registration Statement to be declared
effective under the Securities Act as promptly as practicable after the filing thereof and in no
event later than the date that is 180 days after the date of such Demand Notice.
Section 4.2 In the event of a Demand Registration, the Company shall be required to maintain
the continuous effectiveness of the applicable Registration Statement for a period of at least 180
days after the effective date thereof or such shorter period in which all Registrable Securities
included in such Registration Statement have actually been sold.
Section 4.3 The Holders’ Representative shall have the right to notify the Company that it has
determined that the Demand Registration Statement relating to a Demand Registration be abandoned or
withdrawn, in which event the Company shall promptly abandon or withdraw such Demand Registration
Statement, and in which event, for purposes of Section 4.5, no Demand Registration shall have
deemed to have been made pursuant to Section 4.1.
Section 4.4 The Company shall not be required to pay for expenses of any registration
proceeding begun pursuant to Section 4.1, which has been subsequently withdrawn pursuant to Section
4.3 at the request of the Holders’ Representative, and such expenses shall be reimbursed by the
Holders whose Registrable Securities were intended to be included in the Demand Registration
Statement for reasonable and documented out-of-pocket expenses (including legal fees and printing
expenses) so incurred, unless the withdrawal is based upon material adverse information concerning
the Company that the Company had not publicly disclosed at least two (2) Business Days prior to the
Company’s receipt of such withdrawal request.
Section 4.5 The Company shall not be required to effect a Demand Registration pursuant to
Section 4.1 hereof: (i) after the Company has effected two (2) Demand Registrations pursuant to
Section 4.1 hereof, and such Demand Registration Statements have been declared or ordered effective
and kept effective by the Company as required by Section 4.2 hereof; or (ii) if the Company shall
furnish to all Holders requesting Registrable Securities be included in such Demand Registration
Statement pursuant to Section 4.1 hereof, a certificate signed by the Chief Executive Officer of
the Company stating that, in the good faith and reasonable judgment of the Board of Directors of
the Company, the filing the Demand Registration Statement would require the Company to disclose a
material financing, acquisition or other corporate development which has not been, and would not
otherwise be required to be, disclosed to the public and such disclosure at such time would be
materially adverse to the Company, in which event the Company shall have the right to defer such
filing for a period of not more than sixty (60) days after receipt of the request of the Holders
Representative.
SECTION 5. Registration Procedures.
Section 5.1 In connection with the registration of any Registrable Securities under this
Agreement, the Company shall comply with all the provisions of Section 5.2 hereof and shall use
8
commercially reasonable efforts to effect such registration in accordance with the terms
hereof to permit the resale of the Registrable Securities.
Section 5.2 In connection with the registration of any Registrable Securities required by this
Agreement, the Company shall:
(a) Use commercially reasonable efforts to keep each Registration Statement
continuously effective during the period such Registration Statement is required to remain
effective pursuant to the terms of this Agreement. Upon the occurrence of any event that
would cause the Registration Statement or the Prospectus contained therein (i) to contain a
material misstatement or omission or (ii) not to be effective and usable for resale of
Registrable Securities during the period such Registration Statement is required to remain
effective pursuant to the terms of this Agreement, the Company shall file promptly an
appropriate amendment to the Registration Statement, a supplement to the Prospectus or a
report filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act,
in the case of clause (i), correcting any such misstatement or omission, and, in the case of
either clause (i) or (ii), use commercially reasonable efforts to cause such amendment to be
declared effective and the Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as practicable thereafter.
(b) Prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective
during the period provided herein. Notwithstanding Section 5.2(a) hereof, the Company may
suspend the effectiveness of a Registration Statement and the Holders’ right to sell
thereunder (each such period, a “Suspension Period”) if the Company reasonably determines
and delivers to any Holder a certificate signed by the Chief Executive Officer and Chief
Financial Officer of the Company stating that either (i) such Registration Statement
contains an untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein not misleading in light of the circumstance under
which they were made, and the disclosure of the information required to correct such
misstatement or omission at such time would be materially adverse to the Company or (ii) the
filing or continued use of the Registration Statement would require the Company to disclose
a material financing, acquisition or other corporate development which has not been, and
would not otherwise be required to be, disclosed to the public and such disclosure at such
time would be materially adverse to the Company. Upon such suspension, the Company shall
give notice to the Holders listed in such Registration Statement that the availability of
the Registration Statement is suspended and, upon actual receipt of such notice, each Holder
agrees not to sell any Registrable Securities pursuant to the Registration Statement until
the earlier of (A) such Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in this Section 5.2 or (B) such Holder has been advised in writing by the
Company that the sale of Registrable Securities pursuant to the Registration Statement may
resume. A Suspension Period shall not exceed 30 consecutive days, no Suspension Period
shall commence fewer than 15 days following the expiration of any preceding Suspension
Period, and the aggregate of all Suspension Periods shall not
9
exceed 90 days in any 360-day period. Notwithstanding the foregoing, no Suspension
Period shall apply during any period in which the directors and executive officers of the
Company are not also generally prohibited from selling securities of the Company.
(c) Prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration Statement effective
during the period provided herein.
(d) Advise any Holder that has provided in writing to the Company a telephone or
facsimile number and address for notice, promptly and, if requested by such Holder, to
confirm such advice in writing (which notice pursuant to clauses (ii) through (iv) below
shall be accompanied by an instruction to suspend the use of the Prospectus until the
Company shall have remedied the basis for such suspension):
(i) when the Prospectus or any Prospectus supplement or post-effective
amendment is proposed to be or has been filed, and, with respect to the Registration
Statement or any post-effective amendment thereto, when the same has become
effective,
(ii) of any request by the SEC or any other Governmental Authority for
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(iii) of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Registrable Securities for
offering or sale in any jurisdiction, or the threatening or initiation of any
proceeding for any of the preceding purposes,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, or
(v) of the existence of any fact or the happening of any event, during the
period in which a Registration Statement remains effective under the Securities Act,
that makes any statement of a material fact made in such Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading.
(e) If requested by any Holder, promptly incorporate in the Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to
10
have included therein, including, without limitation, information relating to the “Plan
of Distribution” of the Registrable Securities.
(f) Unless any Registrable Securities shall be in book-entry form only, cooperate with
the Holders to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends (unless required
by applicable securities laws), and enable such Registrable Securities to be in such
denominations and registered in such names as the Holders may request at least two (2)
Business Days before any sale of Registrable Securities.
(g) Use commercially reasonable efforts to promptly register or qualify any Registrable
Securities under such other securities or blue sky laws of such jurisdictions within the
United States as any Holder reasonably requests and which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Holder, keep such registrations or qualifications in
effect for so long as the Registration Statement remains in effect, and do any and all other
acts and things which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in such jurisdictions of the Registrable Securities owned by such
Holder; provided, however, that the Company will not be required to (i) qualify generally to
do business in any jurisdiction where it would not otherwise be required to qualify but for
this Agreement, (ii) subject itself to taxation in any jurisdiction where it would not
otherwise be subject to taxation but for this Agreement or (iii) consent to general service
of process in any jurisdiction where it would not otherwise be subject to such service but
for this Agreement.
(h) Use commercially reasonable efforts to promptly cause any Registrable Securities
covered by a Registration Statement to be registered with or approved by such other
Governmental Entities within the United States as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities in accordance
with the intended methods of disposition set forth in such Registration Statement.
(i) (1) Provide a transfer agent and registrar for all Senior Notes, (2) obtain an
unrestricted CUSIP number for all Senior Notes, (3) qualify the Indenture (as defined in the
Securities Purchase Agreement) under the Trust Indenture Act of 1939, as amended, and (4)
provide the Trustee for the Senior Notes with global certificates for the Senior Notes in a
form eligible for deposit with The Depository Trust Company, and take such other actions as
are necessary or appropriate to qualify the Senior Notes as eligible for deposit with The
Depository Trust Company, in each case not later than the effective date of any Registration
Statement with respect to such Senior Notes.
(j) In the event that the Holders’ Representative advises the Company that Holders
intend to distribute any Registrable Securities by means of an underwritten offering,
whether pursuant to Section 3 or Section 4, enter into an underwriting agreement in
customary form, scope and substance (provided, however, that the
11
Company shall not be obligated to agree to any restrictions on the sale by it of its
securities) and take all such other actions reasonably requested by the Holders of a
Majority of the Registrable Securities being sold in connection therewith or by the managing
underwriter(s), if any, to expedite or facilitate the underwritten disposition of such
Registrable Securities, and in connection therewith in any underwritten offering, (A) make
such representations and warranties to the Holders that are selling stockholders and the
managing underwriter(s), if any, with respect to the business of the Company and its
subsidiaries, and the Registration Statement, prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, in customary form,
substance and scope, and, if true, confirm the same if and when requested, (B) use its
commercially reasonable efforts to furnish the underwriters with opinions of counsel to the
Company, addressed to the managing underwriter(s), if any, covering the matters customarily
covered in such opinions requested in underwritten offerings, (C) use its commercially
reasonable efforts to obtain “cold comfort” letters from the independent certified public
accountants of the Company (and, if necessary, any other independent certified public
accountants of any business acquired by the Company for which financial statements and
financial data are included in the Registration Statement) who have certified the financial
statements included in such Registration Statement, addressed to each of the managing
underwriter(s), if any, such letters to be in customary form and covering matters of the
type customarily covered in “cold comfort” letters, (D) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and procedures customary in
underwritten offerings, and (E) deliver such documents and certificates as may be reasonably
requested by the Holders of a Majority of the Registrable Securities being sold in
connection therewith, their counsel and the managing underwriter(s), if any, to evidence the
continued validity of the representations and warranties made pursuant to clause (i) above
and to evidence compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
Section 5.3 Each Holder agrees by acquisition of a Registrable Security that no Holder shall
be entitled to sell any of such Registrable Securities pursuant to a Registration Statement, or to
receive a Prospectus relating thereto, unless such Holder has furnished the Company with a Notice
and Questionnaire (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. The Company may require each
Holder of Senior Notes to be sold pursuant to a Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such Senior Notes as the Company may
from time to time reasonably require for inclusion in such Registration Statement. Each such
Holder agrees promptly to furnish to the Company all information required to be disclosed in order
to make the information previously furnished to the Company by such Holder not misleading. Any
sale of any Registrable Securities by any Holder shall constitute a representation and warranty by
such Holder that the information relating to such Holder and its Plan of Distribution is as set
forth in the Prospectus delivered by such Holder in connection with such disposition, that such
Prospectus does not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or its Plan of Distribution and that such Prospectus does
not as of the time of such sale omit to state any material fact relating to or provided by such
Holder or its Plan of Distribution necessary to make the statements in such
12
Prospectus, in the light of the circumstances under which they were made, not misleading. The
Company may exclude from such Registration Statement the Registrable Securities of any Holder that
fails to furnish such information within a reasonable time after receiving such request. The
Company shall not include in any Registration Statement any information regarding, relating to, or
referring to any Holder or its Plan of Distribution without the approval of such Holder in writing.
Section 5.4 No Holder shall use any free writing prospectus (as defined in Rule 405 under the
Securities Act) in connection with the sale of Registrable Securities without the prior written
consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed).
SECTION 6. Registration Expenses.
Section 6.1 All expenses incident to the Company’s performance of or compliance with this
Agreement, including without limitation all fees and expenses of compliance with securities or blue
sky laws, messenger, telephone and delivery expenses, and fees and disbursements of counsel for the
Company and of the Company’s independent certified public accountants, reasonable fees and
disbursements of counsel for the Holders, and registration fees payable in connection with the
filing of a Registration Statement (but excluding (i) all underwriting discounts and other expenses
of the underwriters or other commissions, fees, discounts, expenses and commissions of brokers and
dealers and (ii) capital gains, income and transfer taxes, if any, relating to any sale of
Registrable Securities) will be borne and paid promptly by the Company (all such expenses being
herein called “Registration Expenses”).
Section 6.2 Subject to Section 6.1 above, in connection with each registration hereunder, the
Holders included therein shall be responsible for (i) all underwriting discounts and other expenses
of the underwriters or other commissions, fees, discounts, expenses and commissions of brokers and
dealers and (ii) capital gains, income and transfer taxes, if any, relating to the sale of such
Registrable Securities.
SECTION 7. Indemnification; Contribution.
Section 7.1 Indemnification by the Company. In the event any Registrable Securities are
included in a Registration Statement pursuant to this Agreement, the Company shall indemnify and
hold harmless each Holder, its Affiliates, employees, officers, directors, and agents against all
losses, claims, damages, liabilities (joint or several) and expenses (or actions in respect
thereof) in connection with any sale of Registrable Securities pursuant to a Registration Statement
arising out of or based upon (i) any violation or alleged violation of the Securities Act or any
rule or regulation promulgated thereunder by the Company or any of its Affiliates, employees,
officers, directors or agents or (ii) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement or preliminary or final prospectus relating to the
registration of such Registrable Securities or any amendment or supplement thereto or any document
incorporated by reference therein or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, except insofar as the same are
13
contained in any information furnished in writing to the Company by or on behalf of such
Holder or other indemnified Person expressly for use therein. Subject to Section 5.3, the Company
will pay, indemnify, hold harmless and reimburse each Holder and its Affiliates, employees,
officers, directors, and agents for any reasonable legal and other expenses as incurred in
connection with investigating or defending any such losses, claims, damages, liabilities, expenses
or actions for which such Person is entitled to indemnification hereunder.
Section 7.2 Indemnification by a Holder of Registrable Securities. In connection with any
Registration Statement in which a Holder is participating, such Holder shall indemnify and hold
harmless the Company, its employees, officers, directors and agents and all other prospective
sellers and their respective employees, officers, directors and agents against any losses, claims,
damages, liabilities and expenses (or actions in respect thereof) arising out of or based upon any
untrue or alleged untrue statement of a material fact or any omission or alleged omission of a
material fact contained in any Registration Statement or preliminary or final prospectus relating
to the registration of such Registrable Securities or any amendment thereof or supplement thereto
or necessary to make the statements therein, in light of the circumstances in which they were made,
not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement
or omission or alleged omission is contained in any written information or affidavit furnished by
or on behalf of such Holder specifically for use in such Registration Statement or prospectus and
then only to the extent of the total net proceeds received by such Holder (after deducting any
discounts, commissions and similar fees applicable thereto) in consideration of the Registrable
Securities sold by such Holder in connection with such registration. Subject to the provisions of
Section 5.3, the Holders participating in any registration will pay, indemnify, hold harmless and
reimburse (without duplication), up to the full extent of the total net proceeds received by the
Holders (after deducting any discounts, commissions and similar fees applicable thereto and after
taking into account any indemnity payments pursuant to the immediately preceding sentence), the
Company, its employees, officers, directors and agents and all other prospective sellers and their
respective employees, officers, directors and agents for any reasonable legal and other expenses as
incurred in connection with investigation or defending any such losses, claims, damages,
liabilities, expenses or actions.
Section 7.3 Indemnification Procedures.
(a) To exercise its indemnification rights under this Section 7 as a result of the
assertion against it of any claim or potential liability for which indemnification is
provided, a party (the “Indemnified Party”) shall promptly notify the party obligated to
provide indemnification under this Section 7 (the “Indemnifying Party”) of the assertion of
such claim, discovery of any such potential liability or the commencement of any action or
proceeding in respect of which indemnity under this Section 7 may be sought hereunder;
provided, however, that any delay or failure by the Indemnified Party to give notice shall
relieve the Indemnifying Party of its obligations hereunder only to the extent, if at all,
that the Indemnifying Party is actually and materially prejudiced by reason of such delay or
failure. The Indemnified Party shall advise the Indemnifying Party of all facts relating to
such assertion within the knowledge of the Indemnified Party, and shall afford the
Indemnifying Party the opportunity, at the Indemnifying Party’s sole cost and expense, to
defend against such claims for liability. In any such action or proceeding, the
14
Indemnified Party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at its own expense unless (i) the Indemnifying Party and
the Indemnified Party mutually agree to the retention of such counsel, (ii) the Indemnifying
Party shall have failed, within ten (10) Business Days after receipt of a notice in respect
of such claim, to assume the defense of such claim with counsel reasonably satisfactory to
the Indemnified Party (who shall not, except with the consent of the Indemnified Party, be
counsel to the Indemnifying Party) or (iii) the Indemnified Party shall have reasonably
concluded that there may be a conflict of interest (including one or more legal defenses or
counterclaims available to it or to other Indemnified Parties which are different from or
additional to those available to the Indemnifying Party) that would make it inappropriate in
the reasonable judgment of the Indemnified Party for the same counsel to represent both the
Indemnified Party and the Indemnifying Party.
(b) No party to this Agreement shall settle, compromise, discharge or consent to an
entry of judgment with respect to a claim or liability subject to indemnification under this
Section 7.3 without the other parties’ prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed); provided, that the Indemnifying Party may
agree without the prior written consent of the Indemnified Party to any settlement,
compromise, discharge or consent to an entry of judgment, in each case that relates only to
money damages and by its terms obligates the Indemnifying Party to pay the full amount of
the liability in connection with such claim and which unconditionally releases the
Indemnified Party from all liability in connection with such claim.
Section 7.4 Contribution. If the indemnification provided for in Section 7.1 or Section 7.2
is unavailable or insufficient to hold harmless each of the Indemnified Parties against any losses,
claims, damages, liabilities and expenses (or actions in respect thereof) to which such parties may
become subject under the Securities Act, then the Indemnifying Party shall, in lieu of indemnifying
each party entitled to indemnification hereunder, contribute to the amount paid or payable by such
party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one hand and such
Indemnified Parties on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages, liabilities or expenses. The
relative fault of such parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact, or omission or alleged omission to state a
material fact, relates to information supplied by or concerning the Indemnifying Party on the one
hand, or by such Indemnified Party on the other, and such party’s relative intent, knowledge,
access to information and opportunity to have corrected or prevented such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this
Section 7.4 were determined by pro rata allocation or by any other allocation that does not take
into account the equitable considerations referred to in this Section 7.4. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages, liabilities or expenses
referred to above shall be deemed to include (subject to the limitations set forth in Section 7.2
or 7.3 hereof) any legal or other fees or expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action, proceeding or claim. Notwithstanding
the provisions of this Section 7.4, no Holder of
15
Registrable Securities shall be required to contribute any amount in excess of the amount by
which the proceeds received by such Holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of the Securities Act) shall be entitled to contribution from any Person that is not
guilty of such fraudulent misrepresentation.
Section 7.5 Advancement of Expenses. The Indemnifying Party shall promptly reimburse the
Indemnified Party for all reasonable expenses (including reasonable counsel fees and expenses) as
they are incurred by such Indemnified Party in connection with investigating, preparing for,
defending, or providing evidence in, any pending or threatened claim or proceeding in respect of
which indemnification or contribution may be sought pursuant to this Section 7 (whether or not the
Indemnified Party is a party to such claim or proceeding) or in enforcing this Agreement, provided
that, any amounts so advanced pursuant to this Section 7.5 shall be promptly returned to the
Indemnifying Party if it is ultimately determined by final judicial decision from which there is no
further right of appeal that the Indemnified Party was not entitled to indemnification or
contribution under this Section 7; provided, further, that the advancement of such expenses shall
be made only upon delivery to the Indemnifying Party of an undertaking by or on behalf of the
Indemnified Party to promptly return all amounts so advanced if it is ultimately determined by
final judicial decision from which there is no further right of appeal that the Indemnified Party
was not entitled to indemnification or contribution under this Section 7.
SECTION 8. Rule 144.
Section 8.1 The Company covenants that it will use commercially reasonable efforts to timely
file the reports required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder, 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 limitation of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such requirements.
SECTION 9. Miscellaneous.
Section 9.1 Remedies. No Holder shall have any right to take any action to restrain, enjoin
or otherwise delay any registration as a result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
Section 9.2 Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, unless the Company has obtained the written consent of the Holders of at
least a Majority of the outstanding Registrable Securities. Each Holder at the time or thereafter
shall be bound by any consent authorized by this Section 9.2, whether or not such
16
Holder consented or whether or not such Registrable Securities have been marked to indicate
such consent.
Section 9.3 Notices. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given (i) upon personal delivery to the party to be notified, (ii) when
sent by confirmed facsimile if sent during normal business hours of the recipient, or if not, then
on the next Business Day or (iii) one Business Day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent to the addresses set forth below or such other address or facsimile
number as a party may from time to time specify by notice to the other parties hereto:
If to Purchaser:
|
National City Bank | |
| c/o The PNC Financial Services Group, Inc. | ||
| One PNC Plaza | ||
| 000 Xxxxx Xxxxxx | ||
| Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 | ||
| Attention: Mergers & Acquisitions Department | ||
| Fax: (000) 000-0000 | ||
With a copy to:
|
The PNC Financial Services Group,
Inc. One PNC Plaza |
|
| 000 Xxxxx Xxxxxx | ||
| Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 Attention: Mergers & Acquisitions Department |
||
| Fax: (000) 000-0000 | ||
| and | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxxxxxx X. Xxxxx | ||
| Fax: (000) 000-0000 | ||
If to the Company:
|
First Niagara Financial Group, Inc. | |
| 0000 Xxxxx Xxxxxxx Xxxx, X.X. Xxx 000 | ||
| Xxxxxxxx, Xxx Xxxx 00000-0000 | ||
| Fax: (000) 000-0000 | ||
| Attention: Xxxxxxx X. Xxxxxxxxxx | ||
Xxxx
Xxxxx |
||
With a copy to:
|
Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.C. | |
| 0000 Xxxxxxxxx Xxxxxx, XX | ||
| Xxxxx 000 |
00
| Xxxxxxxxxx XX 00000 | ||
| Attention: Xxxx X. Xxxxxx | ||
| Fax: (000) 000-0000 |
Section 9.4 Successors and Assigns. This Agreement will inure to the benefit of and be
binding upon the parties’ respective successors. The registration rights granted by this Agreement
may not be assigned, except that the Purchaser may assign its registration rights under this
Agreement to any of its Affiliates.
Section 9.5 Counterparts. This Agreement may be executed in one or more counterparts and by
the parties hereto in separate counterparts, all of which will constitute one and the same
agreement and shall become effective when one or more counterparts have been signed by each of the
parties hereto and delivered (including by electronic transmission) to the other parties.
Section 9.6 Headings. The headings in this Agreement are for convenience of reference only
and will not limit or otherwise affect the meaning hereof.
Section 9.7 Governing Law; Jurisdiction. This Agreement shall be governed by and interpreted
in accordance with the laws of the Commonwealth of Pennsylvania applicable to agreements made and
entirely to be performed in such commonwealth and without regard to its principles of conflict of
laws. The parties hereto agree that any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in any federal or state court sitting in
Pittsburgh, Pennsylvania.
Section 9.8 Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, are held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision or provisions in every other
respect and of the remaining provisions contained herein will not be affected or impaired thereby.
Section 9.9 Entire Agreement. This Agreement and the Securities Purchase Agreement, together
with the several agreements and other documents and instruments referred to herein or therein or
annexed hereto or thereto, embody the complete agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to the registration
rights granted by the Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings among the parties with respect to such subject matter.
[Signature Pages Follow]
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| FIRST NIAGARA FINANCIAL GROUP, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| NATIONAL CITY BANK |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President | |||
[Signature Page — Registration Rights Agreement]
