Exhibit 4.7
$75,000,000
FBL FINANCIAL GROUP, INC.
5.85% SENIOR NOTES DUE 2014
REGISTRATION RIGHTS AGREEMENT
April 12, 2004
XXXXX, XXXXXXXX & XXXXX, INC.
000 Xxxxxxx Xxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
ABN AMRO INCORPORATED
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
FBL Financial Group, Inc., an Iowa corporation (the "COMPANY"), proposes to
issue and sell to the several initial purchasers, Xxxxx, Xxxxxxxx & Xxxxx, Inc.
and ABN AMRO Incorporated (together the "INITIAL PURCHASERS"), upon the terms
set forth in a purchase agreement of even date herewith (the "PURCHASE
AGREEMENT"), $75,000,000 aggregate principal amount of its 5.85% Senior Notes
due 2014 (the "INITIAL SECURITIES"). The Initial Securities will be issued
pursuant to that certain Indenture, dated as of April 12, 2004 (the
"INDENTURE"), between the Company and Deutsche Bank Trust Company Americas, as
trustee (the "TRUSTEE"). As an inducement to the Initial Purchasers to enter
into the Purchase Agreement, the Company agrees with the Initial Purchasers, for
the benefit of the Initial Purchasers and the holders of the Securities (as
defined below) (collectively, the "HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER.
(a) Unless not permitted by applicable law (after the Company has
complied with the ultimate paragraph of this Section 1), the Company shall
prepare and file with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION
STATEMENT") on an appropriate form under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), with respect to a proposed offer (the
"REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted
Securities (as defined in Section 6 hereof), who are not prohibited by any
law or policy of the Commission from participating in the Registered
Exchange Offer, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, substantially identical in all
material respects to the Initial Securities and registered under the
Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its
reasonable best efforts to cause the Exchange Offer Registration Statement
to become effective under the Securities Act within 270 days (such 270th
day being an "EFFECTIVENESS DEADLINE") after the date on which the Initial
Purchasers purchase the Initial Securities pursuant to the Purchase
Agreement (the "CLOSING DATE") and will keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the
"EXCHANGE OFFER REGISTRATION PERIOD").
(b) If the Company commences the Registered Exchange Offer, the
Company will be entitled to consummate the Registered Exchange Offer 30
days after such commencement (provided that the Company has accepted all
the Initial Securities theretofore validly tendered in accordance with the
terms of the Registered Exchange Offer).
(c) Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, the Company shall promptly commence the
Registered Exchange Offer, it being the objective of the Registered
Exchange Offer to enable each Holder of Transfer Restricted Securities
electing to exchange the Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company within the
meaning of the Securities Act, acquires the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements or
understanding with any person to participate in the distribution of the
Exchange Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade
such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act.
(d) The Company acknowledges that, pursuant to current interpretations
by the Commission's staff of Section 5 of the Securities Act, in the
absence of an applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading
activities, for Exchange Securities (an "EXCHANGING DEALER"), is required
to deliver a prospectus containing the information set forth in (a) Annex A
hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section, and (c) Annex C
hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Securities (as defined below)
acquired in exchange for Initial Securities constituting any portion of an
unsold allotment, is required to deliver a prospectus containing the
information required by Items 507 or 508, as applicable, of Regulation S-K
under the Securities Act in connection with such sale.
(e) The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement
the prospectus contained therein, in order to permit such prospectus to be
lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons
must comply with such requirements in order to resell the Exchange
Securities; PROVIDED, HOWEVER, that (i) in the case where such prospectus
and any amendment or supplement thereto must be delivered by an Exchanging
Dealer or an Initial Purchaser, such period shall be the lesser of 120 days
and the date on which all Exchanging Dealers and the Initial Purchasers
have sold all Exchange Securities held by them (unless such period is
extended pursuant to Section 3(j) below) and (ii) the Company shall make
such prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 120 days after the consummation of
the Registered Exchange Offer.
(f) If, upon consummation of the Registered Exchange Offer, any
Initial Purchaser holds Initial Securities acquired by it as part of its
initial distribution, the Company, simultaneously with the delivery of the
Exchange Securities pursuant to the Registered Exchange Offer, shall issue
and deliver to such Initial Purchaser upon the written request of such
Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial
Securities held by such Initial Purchaser, a like principal amount of debt
securities of the Company issued under the Indenture and substantially
identical in all material respects to the Initial Securities (the "PRIVATE
EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and
the Private Exchange Securities are herein collectively called the
"SECURITIES".
(g) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York, which may be the Trustee or an affiliate of the Trustee;
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(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
business day on which the Registered Exchange Offer shall remain open;
and
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Registered Exchange
Offer or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all the Initial Securities validly
tendered and not withdrawn pursuant to the Registered Exchange Offer
and the Private Exchange;
(ii) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly
to each Holder of the Initial Securities, the Exchange Securities or
the Private Exchange Securities, as the case may be, equal in
principal amount to the Initial Securities of such Holder so accepted
for exchange.
(i) The Indenture will provide that the Exchange Securities will not
be subject to the transfer restrictions set forth in the Indenture and that
all the Securities will vote and consent together on all matters as one
class and that none of the Securities will have the right to vote or
consent as a class separate from one another on any matter.
(j) Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private
Exchange will accrue from the last interest payment date on which interest
was paid on the Initial Securities surrendered in exchange therefor or, if
no interest has been paid on the Initial Securities, from the date of
original issue of the Initial Securities.
(k) Each Holder participating in the Registered Exchange Offer shall
be required to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of its
business, (ii) at the time of commencement of the Registered Exchange
Offer, such Holder had no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange
Securities within the meaning of the Securities Act, (iii) such Holder is
not an "affiliate," as defined in Rule 405 of the Securities Act, of the
Company or if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to
the extent applicable, (iv) if such Holder is not a broker-dealer, that it
is not engaged in, and does not intend to engage in, the distribution of
the Exchange Securities and (v) if such Holder is a broker-dealer, that it
will receive Exchange Securities for its own account in exchange for
Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will deliver a
prospectus in connection with any resale of such Exchange Securities.
(l) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (iii) any prospectus forming part of any Exchange Offer
Registration Statement, and any supplement to such prospectus, does not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(m) If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable
opinion of counsel to the Company raises a substantial
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question as to whether the Registered Exchange Offer is permitted by
applicable federal law, the Company will seek a no-action letter or other
favorable decision from the Commission allowing the Company to consummate
the Registered Exchange Offer. The Company will pursue the issuance of such
a decision to the Commission staff level. In connection with the foregoing,
the Company will take all such other actions as may be requested by the
Commission or otherwise reasonably required in connection with the issuance
of such decision, including without limitation (i) participating in
telephonic conferences with the Commission, (ii) delivering to the
Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded that
the Registered Exchange Offer should be permitted and (iii) diligently
pursuing a resolution (which need not be favorable) by the Commission
staff.
2. SHELF REGISTRATION. If (i) because of any change in law or in applicable
interpretations thereof by the staff of the Commission, the Company is not
permitted to effect a Registered Exchange Offer, as contemplated by Section 1
hereof, (ii) the Registered Exchange Offer is not consummated by the date that
is 40 days after the date on which the Exchange Offer Registration Statement is
declared effective (such 40th day being the "CONSUMMATION DEADLINE"), (iii) any
Initial Purchaser so requests with respect to the Initial Securities (or the
Private Exchange Securities) not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder (other than an
Exchanging Dealer) is not eligible to participate in the Registered Exchange
Offer or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange and any such
Holder so requests for any reason other than the failure by such Holder to make
a timely and valid tender in accordance with the Registered Exchange Offer, the
Company shall take the following actions (the date on which any of the
conditions described in the foregoing clauses (i) through (iv) occur, including
in the case of clauses (iii) or (iv) the receipt of the required notice, being a
"TRIGGER DATE"):
(a) The Company shall as promptly as practicable prepare and file with
the Commission and thereafter use its reasonable best efforts to cause to
be declared effective by the later to occur of the date that is (i) 150
days after the Trigger Date and (ii) 270 days after the Closing Date (such
150th or 270th day, as the case may be, being an "EFFECTIVENESS DEADLINE"),
a registration statement (the "SHELF REGISTRATION STATEMENT" and, together
with the Exchange Offer Registration Statement, a "REGISTRATION STATEMENT")
on an appropriate form under the Securities Act relating to the offer and
sale of the Transfer Restricted Securities by the Holders thereof from time
to time in accordance with the methods of distribution set forth in the
Shelf Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "SHELF REGISTRATION"); PROVIDED, HOWEVER, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities
held by it covered by the Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer period
if extended pursuant to Section 3(j) below) from the Closing Date or such
shorter period that will terminate when all the Securities covered by the
Shelf Registration Statement (i) have been sold pursuant thereto or (ii)
are no longer restricted securities (as defined in Rule 144 under the
Securities Act, or any successor rule thereof) (such applicable period
being called the "SHELF REGISTRATION PERIOD").
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission promulgated thereunder and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
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(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering of the Initial Securities) is participating in the Registered
Exchange Offer or the Shelf Registration Statement, the Company shall use
its best efforts to reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser reasonably may propose
not later than five business days after delivery of such documents to such
Initial Purchaser; (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer Procedures" section
and the "Purpose of the Exchange Offer" section and in Annex C hereto in
the "Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement and include the information set forth
in Annex D hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer; (iii) if requested by an Initial Purchaser,
include the information required by Items 507 or 508, as applicable, of
Regulation S-K under the Securities Act in the prospectus forming a part of
the Exchange Offer Registration Statement; (iv) include within the
prospectus contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the positions taken
or policies made by the staff of the Commission with respect to the
potential "underwriter" status of any broker-dealer that is the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT")) of Exchange Securities received by such
broker-dealer in the Registered Exchange Offer (a "PARTICIPATING
BROKER-DEALER"), whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or policies,
in the reasonable judgment of the Initial Purchasers based upon advice of
counsel (which may be in-house counsel), represent the prevailing views of
the staff of the Commission; and (v) in the case of a Shelf Registration
Statement, include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement as selling securityholders.
(b) The Company shall give written notice to the Initial Purchasers,
the Holders of the Securities and any Participating Broker-Dealer from whom
the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the prospectus until the requisite changes have been
made):
(i) when the Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose of which the Company
has knowledge; and
(v) of the happening of any event that requires the Company to
make changes in the Registration Statement or the prospectus in order
that the Registration Statement or the prospectus do not contain an
untrue statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the circumstances
under which they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal, at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
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(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one
copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Shelf Registration Statement
and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement,
to the use in accordance with applicable law of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto, included
in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use in accordance with
applicable law of the prospectus or any amendment or supplement thereto by
the Initial Purchaser, if necessary, any Participating Broker-Dealer and
such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of the
Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities pursuant to any
Registration Statement, the Company shall cooperate with the Holders of the
Securities included therein and their Special Counsel (as defined in
paragraph (p) below) in connection with the registration or qualification
of the Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the Securities
reasonably requests in writing and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
PROVIDED, HOWEVER, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general service
of process or to taxation in any jurisdiction where it is not then so
subject.
(i) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Registration Statement free of
any restrictive legends and in such denominations and registered in such
names as the Holders may request a reasonable period of time prior to sales
of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company
is required to maintain an effective Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the
Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
If the Company notifies the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of
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the prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchasers, the Holders of the Securities and any
such Participating Broker-Dealers shall suspend use of such prospectus, and
the period of effectiveness of the Shelf Registration Statement provided
for in Section 2(b) above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended by the number of
days from and including the date of the giving of such notice to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received
such amended or supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Initial
Securities, the Exchange Securities or the Private Exchange Securities, as
the case may be, and provide the applicable trustee with printed
certificates for the Initial Securities, the Exchange Securities or the
Private Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(l) The Company will use its reasonable best efforts to comply with
all rules and regulations of the Commission to the extent and so long as
they are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act)
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act, no later than 45 days after the end of a 12-month period
(or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such
12-month period.
(m) The Company shall use its reasonable best efforts to cause the
Indenture to be qualified under the Trust Indenture Act of 1939, as
amended, in a timely manner and, in connection therewith, cooperate with
the Trustee under the Indenture and the Holders of Securities to effect
such changes to the Indenture as may be required for such qualification. In
the event that such qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as
the Company may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements (including,
if requested, an underwriting agreement in customary form) and take all
such other action, if any, as any Holder of the Securities shall reasonably
request in order to facilitate the disposition of the Securities pursuant
to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall (i) make
available at reasonable times and upon reasonable notice for inspection by
a representative of the Holders of a majority in aggregate principal amount
of the Securities being sold, any underwriter participating in any
disposition pursuant to the Shelf Registration Statement and any attorney,
accountant or other agent retained by the Holders of the Securities or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders of the
Securities or any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case, as shall be
reasonably necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
PROVIDED, HOWEVER, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Initial Purchasers by you and on
behalf of the other parties, by one counsel designated by and on behalf of
such other parties as described herein (which counsel shall be LeBoeuf,
Lamb, Xxxxxx & XxxXxx, L.L.P. or another law firm reasonably acceptable to
the Company, such counsel being referred to herein as the "SPECIAL
COUNSEL"); PROVIDED, FURTHER, HOWEVER, that, as a condition to supplying
such information, the Company shall receive an agreement in writing from
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such Special Counsel agreeing that any information that is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Special
Counsel and any other person entitled to receive such information pursuant
to this paragraph (p) unless (w) disclosure of such information is required
pursuant to applicable law or by court or administrative order, (x)
disclosure of such information is, in the reasonable opinion of counsel to
the Company, necessary to avoid or correct a misstatement or omission of a
material fact in any Registration Statement, prospectus or any supplement
or post-effective amendment thereto or disclosure is otherwise required by
law, (y) such information becomes generally available to the public other
than as a result of a disclosure by such counsel or any other person
entitled to receive such information pursuant to this paragraph (p) in
violation of this proviso or (z) such information is approved for release
by the Company in writing.
(q) In the case of any Shelf Registration, the Company, if requested
by any Holder of Securities covered thereby, shall cause (i) its counsel to
deliver an opinion and updates thereof relating to the Securities in
customary form addressed to such Holders and the managing underwriters, if
any, thereof and dated, in the case of the initial opinion, the effective
date of such Shelf Registration Statement (it being agreed that the matters
to be covered by such opinion shall include, without limitation, the due
incorporation and valid existence of the Company and its "significant
subsidiaries" (as defined in Rule 1-02(w) of Regulation S-X); the
qualification of the Company and its significant subsidiaries to transact
business as foreign corporations; the due authorization, execution and
delivery of the relevant agreement of the type referred to in Section 3(o)
hereof; the due authorization, execution, authentication and issuance, and
the validity and enforceability, of the applicable Securities; the absence
of material legal or governmental proceedings involving the Company and its
significant subsidiaries; the absence of governmental approvals required to
be obtained in connection with the Shelf Registration Statement, the
offering and sale of the applicable Securities, or any agreement of the
type referred to in Section 3(o) hereof; the compliance as to form of such
Shelf Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act
and the Trust Indenture Act, respectively; and, as of the date of the
opinion and as of the effective date of the Shelf Registration Statement or
most recent post-effective amendment thereto, as the case may be, the
absence from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, and from any documents
incorporated by reference therein, if applicable, of an untrue statement of
a material fact or the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the light of the
circumstances existing at the time that such documents were filed with the
Commission under the Exchange Act); (ii) its officers to execute and
deliver all customary documents and certificates and updates thereof
requested by any underwriters of the applicable Securities; and (iii) its
independent public accountants and the independent public accountants with
respect to any other entity, if any, for which financial information is
provided in the Shelf Registration Statement to provide to the selling
Holders of the applicable Securities and any underwriter therefor a comfort
letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only
if permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by any
Initial Purchaser or any known Participating Broker-Dealer, the Company
shall cause (i) its counsel to deliver to such Initial Purchaser or such
Participating Broker-Dealer a signed opinion in the form set forth in
Section 7(b)-(c) of the Purchase Agreement with such changes as are
customary in connection with the preparation of a Registration Statement
and (ii) its independent public accountants and the independent public
accountants with respect to any other entity, if any, for which financial
information is provided in the Registration Statement to deliver to such
Initial Purchaser or such Participating Broker-Dealer a comfort letter, in
customary form, meeting the requirements as to the substance thereof as set
forth in the Purchase Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Company (or to such other Person as directed by the Company) in exchange
for the Exchange Securities or the Private Exchange Securities, as the case
may be, the Company shall xxxx, or caused to be marked, on the Initial
Securities so exchanged that such Initial Securities are
8
being canceled in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; in no event shall the Initial
Securities be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best efforts to cause the
Securities covered by any Registration Statement to continue to be rated by
the rating agencies that initially rated the Securities during the period
that any such Registration Statement is required hereunder to remain
effective (it being acknowledged, however, that the foregoing shall not be
deemed to require the Company to maintain the rating of such Securities at
the rating initially given to the Securities).
(u) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "RULES") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company will
assist such broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule 2720,
shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of the Registration
Statement relating to such Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) 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.
(v) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Securities covered
by a Registration Statement contemplated hereby.
(w) Notwithstanding any other provision hereof, the Company may
postpone or suspend the filing or the effectiveness of a Registration
Statement (or any amendments or supplements thereto) if (i) such action is
required by applicable law or (ii) such action is taken by the Company in
good faith and for valid business reasons (not including the avoidance of
the Company's obligations hereunder), including the acquisition or
divestiture of assets, other pending corporate developments, public filings
with the Commission or other similar events, so long as the Company
promptly thereafter complies with the requirements of Section 3(j) hereof,
if applicable. Notwithstanding the occurrence of any event referred to in
the immediately preceding sentence (each such occurrence, a "SUSPENSION"),
no such Suspension shall suspend, postpone or in any other manner affect
the running of the time period after which a Registration Default shall be
deemed to occur and, if the filing or effectiveness of any such
Registration Statement is postponed or suspended as a result of a
Suspension, a Registration Default shall nonetheless exist if all other
requirements required for the occurrence of a Registration Default shall
then be satisfied, and the provisions of Section 6 hereof requiring the
accrual and payment of Additional Interest, as set forth in such Section,
on the Securities shall be payable.
4. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement is ever filed or becomes effective,
including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
9
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of Prospectuses),
messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
and
(v) 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).
The Company will bear its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and
expenses of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of the Special
Counsel.
5. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Holder of
the Securities, any Participating Broker-Dealer and each person, if any,
who controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "INDEMNIFIED PARTIES") from and against any losses,
claims, damages or liabilities, joint or several, or any actions in respect
thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Securities)
to which each Indemnified Party may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration,
or arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action in respect thereof;
PROVIDED, HOWEVER, that the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating
to a Shelf Registration in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; PROVIDED FURTHER,
HOWEVER, that this indemnity agreement will be in addition to any liability
which the Company may otherwise have to such Indemnified Party. The Company
shall also indemnify underwriters, their officers and directors and each
person who controls such underwriters within the meaning of the Securities
Act or the Exchange Act to the same extent as provided above with respect
to the indemnification of the Holders of the Securities if requested by
such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or
any actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration, or arise out of or
are based upon the omission or alleged
10
omission to state therein a material fact necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company
or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof;
PROVIDED, HOWEVER, that the omission so to notify the indemnifying party
(i) shall not relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (as
consented to in writing by the indemnified party), and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof the indemnifying party will not be liable to
such indemnified party under this Section 5 for any legal or other
expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof;
PROVIDED, HOWEVER, that the indemnified party shall have the right to
employ counsel to represent the indemnified party and their respective
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the indemnified party
against the indemnifying party under this Section 5 if the employment of
such counsel shall have been authorized in writing by the indemnifying
party in connection with the defense of such action, if in the written
opinion of counsel to either the indemnifying party or the indemnified
party, representation of both parties by the same counsel would be
inappropriate due to actual or likely conflicts of interest between them or
the indemnifying party shall have failed to employ counsel within a
reasonable period of time, and in that event the fees and expenses of one
firm of separate counsel (in addition to the fees and expenses of one firm
of local counsel in each applicable jurisdiction) shall be paid by the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action, and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as
any other relevant equitable considerations. The relative fault of the
parties 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 on the one hand or such Holder or such other
indemnified party, as the case may be, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim
which is the subject of
11
this subsection (d). Notwithstanding any other provision of this Section
5(d), the Holders of the Securities shall not be required to contribute any
amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration
Statement exceeds the amount of damages which such Holders have otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any indemnified
party.
6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES.
(a) Additional interest (the "ADDITIONAL INTEREST") with respect to
each Transfer Restricted Security shall be assessed as follows if either of
the following events occur (each such event in clauses (i) and (ii) below
being herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this Agreement is
not declared effective by the Commission on or prior to the applicable
Effectiveness Deadline; or
(ii) on and after the applicable Effectiveness Deadline (plus
an additional 30 days in respect of the Exchange Offer Registration
Statement), any Registration Statement required by this Agreement has
been declared effective by the Commission but (A) such Registration
Statement thereafter ceases to be effective or (B) such Registration
Statement or the related prospectus ceases to be usable in connection
with resales of Transfer Restricted Securities during the periods
specified herein because (1) any event occurs as a result of which the
related prospectus forming part of such Registration Statement would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, (2) it
shall be necessary to amend such Registration Statement or supplement
the related prospectus to comply with the Securities Act or the
Exchange Act or the respective rules thereunder or (3) of a Suspension
by the Company in accordance with Section 3(w) hereof.
Each of the foregoing will constitute a Registration Default whatever the
reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a
result of any action or inaction by the Commission. Additional Interest
shall accrue on each Transfer Restricted Security over and above the
interest set forth in the title of such Transfer Restricted Security from
and including the date on which any such Registration Default shall occur
to but excluding the date on which all such Registration Defaults have
ceased to be continuing, at a rate of 0.50% per annum (the "ADDITIONAL
INTEREST RATE").
(b) A Registration Default referred to in Section 6(a)(ii) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus or
(y) other material events with respect to the Company that would need to be
described in such Shelf Registration Statement or the related prospectus
and (ii) in the case of clause (y), the Company is proceeding promptly and
in good faith to amend or supplement such Shelf Registration Statement and
related prospectus to describe such events; PROVIDED, HOWEVER, that in any
case if such Registration Default occurs for a continuous period in excess
of 30 days, Additional Interest
12
shall be payable in accordance with the above paragraph from the date of
such Registration Default until such Registration Default ceases.
(c) Notwithstanding the foregoing, the Company shall not be required
to pay the Additional Interest required pursuant to paragraph (a) above to
a Holder of Transfer Restricted Securities if the applicable Registration
Default arises by reason of the failure of such Holder to provide such
information as (i) the Company may reasonably request, with reasonable
prior written notice, for use in the Shelf Registration Statement or any
prospectus included therein to the extent the Company reasonably determines
that such information is required to be included therein by applicable law,
(ii) the NASD or the Commission may request in connection with such Shelf
Registration Statement or (iii) is required to comply with the agreements
of such Holder contained in Section 3(a) to the extent compliance thereof
is necessary for the Shelf Registration Statement to be declared effective.
(d) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash on the regular interest payment dates with respect
to the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the principal amount
of the Securities and further multiplied by a fraction, the numerator of
which is the number of days such Additional Interest Rate was applicable
during such period (determined on the basis of a 360-day year comprised of
twelve 30-day months), and the denominator of which is 360.
(e) "TRANSFER RESTRICTED SECURITIES" means each Security until (i) the
date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of an Initial Security for an Exchange Security,
the date on which such Exchange Security is sold to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a
copy of the prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with the
Shelf Registration Statement or (iv) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Securities Act or
is saleable pursuant to Rule 144(k) under the Securities Act.
7. RULES 144 AND 144A. The Company agrees with each Holder, for so long as
any Transfer Restricted Securities remain outstanding and during any period in
which the Company (i) is not subject to Section 13 or 15(d) of the Exchange Act,
to make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering ("MANAGING UNDERWRITERS") will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering and will be reasonably acceptable to
the Company. No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) REMEDIES. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 1 and 2 hereof may
result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Company's
obligations
13
under Sections 1 and 2 hereof. The Company further agrees to waive the
defense in any action for specific performance that a remedy at law would
be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement 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. The
Company hereby represents that the rights granted to the Holders hereunder
do not conflict with and are not inconsistent with the rights granted to
the holders of the Company's securities under any agreement in effect on
the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company and the
written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents; PROVIDED, HOWEVER, that, with respect to any matter that directly
or indirectly adversely affects the rights of any Holder of Transfer
Restricted Securities occurring within the period in which any Registration
Statement is effective for such Holder, the Company shall obtain the
written consent of each such Holder against which such amendment,
modification, supplement, waiver, consent or departure is to be effective.
Notwithstanding the foregoing (except for the foregoing proviso), a waiver
or consent to departure from the provisions hereof with respect to a matter
that relates exclusively to the rights of any Holder of Securities whose
Securities are being sold or exchanged pursuant to a Registration Statement
and that does not directly or indirectly adversely affect the rights of any
other Holder of Securities may be given by Holders of at least a majority
in aggregate principal amount of the Securities being sold or exchanged by
such holders pursuant to such Registration Statement; PROVIDED, HOWEVER,
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Without the consent of the Holder of each Security,
however, no modification may change the provisions relating to the payment
of Additional Interest.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 Xxxxxxx Xxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxx, General Counsel
and to
ABN AMRO Incorporated
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Fax No: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
with a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 X. 00xx Xx.
00
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx
(3) if to the Company, at its address as follows:
FBL Financial Group, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxx, Brown, Koehn, Shors & Xxxxxxx, P.C.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged by recipient's facsimile machine
operator, if sent by facsimile transmission; and on the day delivered, if
sent by overnight air courier guaranteeing next day delivery.
(e) THIRD PARTY BENEFICIARIES. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchasers, on the other, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(j) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed
to be affiliates solely by reason of their holdings of such Securities)
shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
15
(l) SUBMISSION TO JURISDICTION. Each of the parties hereto hereby
submits to the non-exclusive jurisdiction of the Federal and State Courts
of the Borough of Manhattan in the City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
16
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Initial Purchaser and the Company in accordance with its terms.
Very truly yours,
FBL FINANCIAL GROUP, INC.
By: /s/
------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer and
Chief Administrative Officer
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
XXXXX, XXXXXXXX & XXXXX, INC.
By: /s/
-------------------------------
Name: Xxxx Xxxxxx
Title: Principal
ABN AMRO INCORPORATED
By: /s/
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
17
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 120 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in
exchange for Initial Securities, where such Initial Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 120 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until , 200 , all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 120 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
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(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the inside front cover page of the Exchange Offer prospectus below the
Table of Contents.
ANNEX D
/ / CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE INITIAL SECURITIES
FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING ACTIVITIES OR OTHER TRADING
ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10
COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
/ / CHECK HERE IF YOU ARE NOT SUCH A BROKER-DEALER BUT ARE A QUALIFIED
INSTITUTIONAL BUYER OR OTHERWISE RECEIVED THE INITIAL SECURITIES IN A
TRANSACTION OR SERIES OF TRANSACTIONS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-------------------------------------
Address:
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If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
