Conformed Copy
July 15, 1997
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CONNING & CO.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs and Madams:
HSB Capital I, a statutory business trust
created pursuant to a Trust Agreement, as amended and
restated (the "Trust Agreement"), under the laws of the
state of Delaware (the "Trust"), proposes to issue and
sell to certain purchasers (the "Initial Purchasers"),
upon the terms set forth in a purchase agreement, dated
July 15, 1997 (the "Purchase Agreement"), $110,000,000
liquidation amount of Global Floating Rate Capital
Securities, Series A (liquidation amount $1,000 per
Capital Security) (the "Capital Securities").
Capitalized terms used but not specifically defined
herein are defined in the Purchase Agreement.
The Trust exists for the sole purpose of
issuing its trust interests and investing the proceeds
thereof in Global Floating Rate Junior Subordinated
Deferable Interest Debentures, Series A (the "Junior
Subordinated Debentures") to be issued by HSB Group,
Inc., a Connecticut corporation (the "Company"). The
Company has, through a Guarantee Agreement, the Trust
Agreement, the Junior Subordinated Debentures, and the
Indenture under which the Junior Subordinated Debentures
are issued (the "Indenture") (the "Guarantee" and,
together with the Capital Securities and the Junior
Subordinated Debentures, the "Securities") guaranteed
certain obligations in respect of the Capital Securities.
As an inducement to the Initial Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition
to your obligations thereunder, the Company and the Trust
agree with you, for the benefit of the holders of the
Capital Securities (including the Initial Purchasers)
(the "Holders"), as follows:
1. REGISTERED EXCHANGE OFFER. The Company
and the Trust shall use their best efforts to file with
the Commission within 90 calendar days after the Closing
Date a registration statement (the "Exchange Offer
Registration Statement") on an appropriate form under the
Securities Act with respect to a proposed offer (the
"Registered Exchange Offer") to the Holders to issue and
deliver to such Holders, in exchange for (a) the Capital
Securities, a like amount of a new series of capital
securities of the Trust (the "Exchange Capital
Securities") with terms substantially identical to those
of the Capital Securities (except that the Exchange
Capital Securities will not contain terms with respect to
transfer restrictions under the Securities Act, and will
be entitled, to the extent applicable, to the benefits of
trust indentures which have been qualified under the
Trust Indenture Act), (b) the Guarantee, the Company's
guarantee in respect of the Exchange Capital Securities
(the "Exchange Guarantee") with terms substantially
identical to those of the Guarantee (except that the
Exchange Guarantee will not contain terms with respect to
transfer restrictions under the Securities Act) and (c)
the Junior Subordinated Debentures, a like amount of a
new series of junior subordinated debentures (the
"Exchange Junior Subordinated Debentures" and, together
with the Exchange Capital Securities and the Exchange
Guarantee, the "Exchange Securities") with terms
substantially identical to those of the Junior
Subordinated Debentures (except that the Exchange Junior
Subordinated Debentures will not contain terms with
respect to transfer restrictions under the Securities
Act, and will be entitled, to the extent applicable, to
the benefits of trust indentures which have been
qualified under the Trust Indenture Act), shall use their
best efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act
within 150 calendar days of the Closing Date and shall
keep the Exchange Offer Registration Statement effective
for not less than 30 calendar days (or longer, if
required by applicable law) after the date notice of the
Exchange Offer is mailed to the Holders (such period
being called the "Exchange Offer Registration Period").
The Exchange Securities will be issued under the
Indenture or an indenture (the "Exchange Securities
Indenture") between the Company and the Debenture Trustee
or such other bank or trust company reasonably
satisfactory to you, as trustee (the "Exchange Securities
Trustee"), such indenture to be identical in all material
respects to the Indenture except for the transfer
restrictions relating to the Securities (as described
above).
Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Trust shall
promptly commence the Registered Exchange Offer. An
exchange for purposes of clauses (i) and (ii) of the next
sentence will be deemed to have been completed only if
the Exchange Securities received by holders, other than
holders that are unable to make the representations set
forth in the penultimate paragraph of Section 1 or are
referred to in clause (iv) of Section 2 hereof, are, upon
receipt, transferable by each such holder without
restriction under the Securities Act and without material
restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States
of America. The Exchange Offer shall be deemed to have
been completed upon the earlier to occur of (i) the
Company and the Trust having exchanged the Exchange
Securities for all outstanding Securities pursuant to the
Exchange Offer and (ii) the Company having exchanged,
pursuant to the Exchange Offer, Exchange Securities for
all Securities that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer
Registration Period. The Company and the Trust
acknowledge that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities
Act, (i) each Holder that is a broker-dealer electing to
exchange Securities, acquired for its own account as a
result of market making activities or other trading
activities, for Exchange Securities (an "Exchanging
Dealer"), is required to deliver a prospectus containing
the information set forth in Annex A hereto on the cover,
in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section,
and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of
any such Exchange Securities received by such Exchanging
Dealer pursuant to the Registered Exchange Offer and (ii)
if any Initial Purchaser elects to sell Exchange
Securities acquired in exchange for Securities
constituting any portion of an unsold allotment it is
required to deliver a prospectus, containing the
information required by Items 507 and/or 508 of
Regulation S-K under the Securities Act, as applicable,
in connection with such a sale.
In connection with the Registered Exchange
Offer, the Company and the Trust shall:
(a) mail to each Holder a copy of the
prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open
for not less that 30 days after the date notice thereof
is mailed to the Holders (or longer if required by
applicable law);
(c) utilize the services of a Depositary for
the Registered Exchange Offer with an address in the
Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered
Securities at any time prior to the close of business,
New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all
applicable laws applicable to the Registered Exchange
Offer.
As soon as practicable after the close of the
Registered Exchange Offer, the Company and/or the Trust,
as the case may be, shall:
(a) accept for exchange all Securities
tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(b) deliver to the Property Trustee for
cancellation all Capital Securities so accepted for
exchange; and
(c) cause the Property Trustee promptly to
authenticate and deliver to each holder of Capital
Securities, Exchange Capital Securities equal in
liquidation amount to the Capital Securities of such
holder so accepted for exchange.
The Company shall make available for a period
of 180 days after the consummation of the Registered
Exchange Offer, a copy of the prospectus forming part of
the Exchange Offer Registration Statement to any
broker-dealer for use in connection with any resale of
any Exchange Securities. The Company shall keep the
Exchange Offer Registration Statement effective for a
period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and
ending upon the earlier of (i) either (a) the expiration
of the 180th day after the Exchange Offer has been
completed or (b) in the event the Company and the Trust
have at any time suspended the use of the prospectus
contained in the Exchange Offer Registration Statement
pursuant to Section 4(b) hereof, the day beyond the 180th
day after the Exchange Offer has been completed that
reflects an additional period of days equal to the number
of days during all of the periods from and including the
dates the Company and the Trust give notice pursuant to
Section 4(b) hereof to and including the date when
broker-dealers receive an amended or supplemented
prospectus necessary to permit resales of Exchange
Securities or to and including the date on which the
Company and the Trust give a Resumption Notice (as
defined in Section 4(x)) or (ii) such time as such
broker-dealers no longer own any Exchange Securities
whose resales by them are subject to the prospectus
delivery requirements under the Securities Act. With
respect to such registration statement, each
broker-dealer that holds Exchange Securities received in
an Exchange Offer in exchange for Securities not acquired
by it directly from the Company shall have the benefit of
the rights of indemnification and contribution set forth
in Section 6 hereof in connection with resales of
Exchange Securities during the Resale Period.
Each Holder participating in the Registered
Exchange Offer shall be required to represent to the
Company and the Trust that at the time of the
consummation of the Registered Exchange Offer (i) any
Exchange Securities received by such Holder will be
acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with
any person to participate in the distribution of the
Securities or the Exchange Securities within the meaning
of the Securities Act and (iii) such Holder is not an
affiliate of the Company within the meaning of the
Securities Act.
Notwithstanding any other provisions hereof,
the Company and the Trust will ensure that (i) any
Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with
the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading and (iii) any prospectus forming
part of any Exchange Offer Registration Statement, and
any supplement to such prospectus, does not include an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading.
2. SHELF REGISTRATION. If (i) the Company
and the Trust are not required to file the Exchange Offer
Registration Statement or permitted to consummate the
Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy, (ii)
for any reason the Exchange Offer Registration Statement
is not declared effective within 150 calendar days after
the Closing Date, (iii) the Company has received an
opinion of counsel, rendered by a law firm having a
recognized national tax practice, to the effect that, as
a result of the consummation of the Exchange Offer, there
is more than an insubstantial risk that (x) the Trust is,
or will be, within 90 days of the date of such opinion,
subject to United States federal income tax with respect
to income received or accrued on the Junior Subordinated
Debentures or Exchange Junior Subordinated Debentures,
(y) interest payable by the Company on such Junior
Subordinated Debentures or Exchange Junior Subordinated
Debentures is not, or within 90 days of the date of such
opinion, will not be, deductible by the Company, in whole
or in part, for United States federal income tax
purposes, or (z) the Trust is, or will be within 90 days
of such opinion, subject to more than a de minimis amount
of other taxes, duties or other governmental charges, or
(iv) any holder of Transfer Restricted Securities
notifies the Company or the Trust on or by the 20th
business day following the consummation of the Exchange
Offer that (A) it is prohibited by law or Commission
policy from participating in the Exchange Offer, (B) it
may not resell the Exchange Capital Securities, the
Exchange Guarantees and the Exchange Junior Subordinated
Debentures acquired by it in the Exchange Offer to the
public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is
not appropriate or available for such resales or (C) it
is a broker-dealer and owns Capital Securities acquired
directly from the Trust or an affiliate of the Trust, or
(v) if the Company so elects, then the following
provisions shall apply:
(a) The Company and the Trust shall use their
best efforts as promptly as practicable to file with the
Commission and thereafter shall use their best efforts to
cause to be declared effective a "shelf" registration
statement on an appropriate form under the Securities Act
providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the
Transfer Restricted Securities, pursuant to Rule 415 or
any similar rule that may be adopted by the Commission
(hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement,
a "Registration Statement").
(b) The Company and the Trust shall use their
best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus
forming part thereof to be usable by Holders for a period
ending on the earlier of (i) (x) the second anniversary
of the Closing Date, (y) the expiration of the period
following the Closing Date after which Rule 144(k) under
the Securities Act generally becomes available to
non-affiliates of an issuer or (z) in the event the
Company and the Trust have at any time suspended the use
of the prospectus contained in the Shelf Registration
Statement pursuant to Section 4(b) hereof, the date
beyond the earlier of the periods referred to in clauses
(x) and (y) that reflects an additional period of days
equal to the number of days during all of the periods
from and including the dates the Company and the Trust
give notice of such suspension pursuant to Section 4(b)
to and including the date when holders of Securities
receive an amended or supplemented prospectus necessary
to permit resales of Securities under the Shelf
Registration Statement or to and including the date on
which the Company and Trust give a Resumption Notice or
(ii) such time as all of the Securities covered by the
Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement or pursuant to Rule 144
(in any such case, such period being called the "Shelf
Registration Period"). The Company and the Trust shall
be deemed not to have used their best efforts to keep the
Shelf Registration Statement effective during the
requisite period if they voluntarily take any action that
would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that
period, unless such action, in the opinion of the Company
after consulting with legal counsel, is required by
applicable law.
(c) Notwithstanding any other provisions
hereof, the Company and the Trust will ensure that (i)
any Shelf Registration Statement and any amendment
thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with
the Securities Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading
and (iii) any prospectus forming part of any Shelf
Registration Statement, and any supplement to such
prospectus does not include an untrue statement of a
material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
3. LIQUIDATED DAMAGES.
(a) The parties hereto agree that the Holders
of Securities will suffer damages if the Company fails to
fulfill its obligations under Section l or Section 2, as
applicable, and that it would not be feasible to
ascertain the extent of such damages. Accordingly, if
(i) the applicable Registration Statement is not filed
with the Commission on or prior to 90 calendar days after
the Closing Date, (ii) the Exchange Offer Registration
Statement or, as the case may be, the Shelf Registration
Statement, is not declared effective within 150 calendar
days after the Closing Date, (iii) the Exchange Offer is
not consummated on or prior to 30 business days after the
date on which the Exchange Offer Registration Statement
was declared effective by the Commission, or (iv) the
Shelf Registration Statement is filed and declared
effective within 150 calendar days after the Closing Date
but shall thereafter cease to be effective (at any time
that the Company is obligated to maintain the
effectiveness thereof) without being succeeded within 30
calendar days by an additional Registration Statement
filed and declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"),
the Company will pay to holders of Transfer Restricted
Securities (as defined below) as liquidated damages,
additional interest in respect of the Junior Subordinated
Debentures, and corresponding distributions shall
accumulate on the Liquidation Amount of Capital
Securities, at a rate of 0.25% per annum until (i) the
applicable Registration Statement is filed, (ii) the
Exchange Registration Statement is declared effective and
the Exchange Offer is consummated, (iii) the Shelf
Registration Statement is declared effective or (iv) the
Shelf Registration Statement again becomes effective, as
the case may be. Following the cure of all Registration
Defaults, the accrual of liquidated damages will cease.
As used herein, "Transfer Restricted Securities" means
each Capital Security, Guarantee and Junior Subordinated
Debenture until (i) the date on which such securities
have been exchanged for a freely transferable Exchange
Capital Security, Exchange Guarantee and Exchange Junior
Subordinated Debenture in the Exchange Offer, (ii) the
date on which such securities have been effectively
registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iii)
the date on which such securities are distributed to the
public pursuant to Rule 144 under the Securities Act or
are salable pursuant to Rule 144(k) under the Securities
Act. Notwithstanding anything to the contrary in this
Section 3(a), the Company shall not be required to pay
liquidated damages to the holder of Transfer Restricted
Securities if such holder: (a) failed to comply with its
obligations to make the representations in the second to
last paragraph of Section 1; or (b) failed to provide the
information required to be provided by it, if any,
pursuant to Section 4(n).
(b) The Company and the Trust shall notify the
Property Trustee under the Trust Agreement immediately
upon the happening of each and every Registration
Default. The Company shall pay the liquidated damages
due on the Transfer Restricted Securities by depositing
with the Property Trustee (which may not be the Company
for these purposes), in trust, for the benefit of the
Holders thereof, prior to 10:00 a.m. New York City time
on the next date specified by the Trust Agreement and the
Capital Securities for the payment of cash distributions
in respect of the Capital Securities, sums sufficient to
pay the liquidated damages then due. The liquidated
damages due shall be payable on each distribution payment
date specified by the Trust Agreement and the Capital
Securities to the record holder entitled to receive this
distribution payment to be made on such date. Each
obligation to pay liquidated damages shall be deemed to
accrue from and including the applicable Registration
Default.
(c) The parties hereto agree that the
liquidated damages provided for in this Section 3
constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by
holders of Transfer Restricted Securities by reason of
the failure of (i) the Shelf Registration Statement or
the Exchange Offer Registration Statement to be filed,
(ii) the Shelf Registration Statement to be declared
effective or to remain effective, or (iii) the Exchange
Offer Registration Statement to be declared effective and
the Exchange Offer to be consummated, to the extent
required by this Agreement.
4. REGISTRATION PROCEDURES. In connection
with any Registration Statement, the following provisions
shall apply:
(a) The Company and the Trust shall (i)
furnish to you, prior to the filing thereof with the
Commission, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that any of
the Initial Purchasers (with respect to any portion of an
unsold allotment from the original offering) are
participating in the Registered Exchange Offer or the
Shelf Registration, shall use reasonable efforts to
reflect in each such document, when so filed with the
Commission, such comments as you reasonably may propose;
(ii) with respect to an Exchange Offer Registration
Statement, include the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange
Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the
"Plan of Distribution" section of the prospectus forming
a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and (iii) if requested by any
Initial Purchaser, include the information required by
Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in the prospectus forming a part of
the Exchange Offer Registration Statement.
(b) The Company and the Trust shall advise you
and, in the case of a Shelf Registration Statement, the
Holders (if applicable), and, if requested by you or any
such Holder, confirm such advice in writing (which advice
pursuant to clauses (ii)-(v) hereof shall be accompanied
by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
(i) when the Registration Statement and
any amendment thereto has been filed with the Commission
and when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any comments by the Commission
and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or of any
request by the Commission for amendments or supplements
to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening
of any proceedings for that purpose;
(iv) of the receipt by the Company or the
Trust of any notification with respect to the suspension
of the qualification of the Securities or the Exchange
Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(v) of the happening of any event that
requires the making of any changes in the Registration
Statement, prospectus, prospectus amendment or supplement
or post-effective amendment so that, as of such date, the
statements therein are not misleading and do not omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Company and the Trust will use their
best efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration
Statement at the earliest possible time.
(d) The Company and the Trust will furnish to
each Holder of Securities included within the coverage of
any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and
any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests
in writing, all exhibits (including those incorporated by
reference).
(e) The Company and the Trust will deliver to
each Holder of Securities included within the coverage of
any Shelf Registration Statement, without charge, as many
copies of the prospectus (including each preliminary
prospectus) included in such Shelf Registration Statement
and any amendment or supplement thereto as such Holder
may reasonably request; and the Company and the Trust
consent to the use of the prospectus or any amendment or
supplement thereto by each of the selling Holders of
Securities in connection with the offering and sale of
the Securities covered by the prospectus or any amendment
or supplement thereto.
(f) The Company and the Trust will furnish to
each Exchanging Dealer or Initial Purchaser, as
applicable, which so requests, without charge, at least
one copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial
statements and schedules, and, if the Exchanging Dealer
or Initial Purchaser, as applicable, so requests in
writing, all exhibits (including those incorporated by
reference).
(g) The Company and the Trust will, during the
Exchange Offer Registration Period or the Shelf
Registration Period, as applicable, promptly deliver to
each Exchanging Dealer or Initial Purchaser, as
applicable, without charge, as many copies of the
prospectus included in such Exchange Offer Registration
Statement or Shelf Registration Statement, as applicable,
and any amendment or supplement thereto as such
Exchanging Dealer or Initial Purchaser, as applicable,
may reasonably request for delivery by (i) such
Exchanging Dealer in connection with a sale of Exchange
Securities received by it pursuant to the Registered
Exchange Offer or (ii) such Initial Purchaser in
connection with a sale of Exchange Securities received by
it in exchange for Securities constituting any portion of
an unsold allotment; and the Company and the Trust
consent to the use of the prospectus or any amendment or
supplement thereto by any such Exchanging Dealer or
Initial Purchaser, as applicable, as aforesaid.
(h) Prior to any public offering of Securities
or Exchange Securities pursuant to any Registration
Statement, the Company and the Trust will use their best
efforts to register or qualify or cooperate with the
Holders of Securities included therein and their
respective counsel in connection with the registration or
qualification of such securities for offer and sale under
the securities or blue sky laws of such jurisdictions as
any such Holder reasonably requests in writing and do any
and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the
Securities or Exchange Securities covered by such
Registration Statement; provided, however, that the
Company and the Trust (or any subsidiary or affiliate of
the Company) will not be required to qualify generally to
do business in any jurisdiction where they are not then
so qualified or to take any action which would subject
them to general service of process or to taxation in any
such jurisdiction where they are not then so subject.
(i) The Company and the Trust will cooperate
with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing
Securities or Exchange Securities to be sold pursuant to
any Registration Statement free of any restrictive
legends and in such denominations and registered in such
names as Holders may request in writing prior to delivery
of Securities or Exchange Securities pursuant to such
Registration Statement.
(j) Upon the occurrence of any event
contemplated by paragraphs (b)(ii) through (v) above
during the period for which the Company and the Trust are
required to maintain an effective Registration Statement,
the Company and the Trust will promptly prepare a
post-effective amendment to the Registration Statement or
a supplement to the related prospectus or file any other
required document so that, as so amended or supplemented,
the prospectus will not include an untrue statement of a
material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading.
(k) Not later than the effective date of the
applicable Registration Statement, the Company and the
Trust will provide a CUSIP number for the Securities or
Exchange Securities, as the case may be, and provide the
applicable trustee with printed certificates for the
Securities or Exchange Securities, as the case may be, in
a form eligible for deposit with The Depository Trust
Company.
(l) The Company will comply with all
applicable rules and regulations of the Commission and
will make generally available to its security holders not
later than 90 days after the end of the 12 month period
beginning at the end of the fiscal quarter in which the
applicable Registration Statement first became effective
under the Securities Act, an earnings statement (which
need not be audited) satisfying the provisions of Section
ll(a) of the Securities Act.
(m) The Company and the Trust will cause the
Trust Agreement and the Indenture or the Exchange
Securities Indenture, as the case may be, to be qualified
under the Trust Indenture Act as required by applicable
law in a timely manner.
(n) The Company and the Trust may require each
Holder of Securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of
such Securities as the Company may from time to time
reasonably request in writing for inclusion in such
Registration Statement, but only to the extent that such
information is required in order to comply with the
Securities Act or the Rules of the NASD, and the Company
may exclude from such registration the Securities of any
Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such
request.
(o) The Company and the Trust shall enter into
such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all
such other action, if any, as Holders of a majority in
aggregate liquidation amount of Capital Securities or
Exchange Capital Securities being sold or the managing
underwriters (if any) shall reasonably request in order
to facilitate the disposition of Securities pursuant to
any Shelf Registration Statement.
(p) In the case of a Shelf Registration
Statement, the Company shall provide to any of (A) the
holders of the securities to be included in such
registration statement, (B) the underwriters (which term,
for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or
placement agent, if any, therefor, (D) counsel for such
underwriters or agent and (E) not more than one counsel
for all the holders of such securities who so request of
the Company in writing the opportunity to participate in
the preparation of such registration statement, each
prospectus included therein or filed with the Commission
and each amendment or supplement thereto.
(q) In the case of a Shelf Registration
Statement, for a reasonable period prior to the filing
thereof, the Company shall (i) make reasonably available
for inspection by the persons referred to in Section 4(p)
who shall certify to the Company and the Trust that they
have a current intention to sell the Securities pursuant
to the Shelf Registration Statement, all relevant
financial and other records, pertinent corporate
documents and properties of the Company and the
Subsidiaries and (ii) use reasonable efforts to have
Company's and the Subsidiaries' officers, directors,
employees, counsel, accountants and independent auditors
supply all relevant information reasonably requested by
such persons (each, an "Inspector") in connection with
any such Registration Statement, as shall be reasonably
necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the
Securities Act, subject to executing a confidentiality
undertaking in customary form with respect to
confidential or proprietary information of the Company or
such Subsidiary.
(r) In the case of a Shelf Registration
Statement, the Company and the Trust shall, if requested
by any managing underwriter or underwriters, any
placement or sales agent or any holder of Securities,
promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required
by the applicable rules and regulations of the Commission
that such managing underwriter or underwriters, such
agent or such holder specifies should be included therein
relating to the terms of the sale of such Securities,
including information with respect to the principal
amount of Securities being sold by such holder or agent
or to any underwriters, the name and description of such
holder, agent or underwriter, the offering price of such
Securities and any discount, commission or other
compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with
respect to any other terms of the offering of the
Securities to be sold by such holder or agent or to such
underwriters; and make all required filings of such
prospectus supplement or post-effective amendment
promptly after notification of the matters to be
incorporated in such prospectus supplement or
post-effective amendment.
(s) In the case of a Shelf Registration
Statement, the Company and the Trust, shall (A) make such
representations and warranties to the holders of such
Securities and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made by the
Company in connection with an offering of debt securities
pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to
the Shelf Registration; (B) obtain an opinion of counsel
to the Company and an opinion of counsel to the Trust in
each case in customary form and covering such matters, of
the type customarily covered by such an opinion, and in
the case of the Company as customarily given in public
offerings of the Company's debt securities as the
managing underwriters, if any, or as any holders of at
least 25% in aggregate principal amount of the Securities
at the time outstanding may reasonably request, addressed
to such holder or holders and the placement or sales
agent, if any, therefor and the underwriters, if any,
thereof and dated the effective date of such registration
statement (and if such registration statement
contemplates an underwritten offering of a part or all of
the Securities, dated the date of the closing under the
underwriting agreement relating thereto); (C) to the
extent permitted by Statement of Auditing Standards No.
72, obtain a "cold comfort" letter or letters from the
independent certified public accountants of the Company
addressed to the selling holders of Securities, the
placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective
date of such registration statement and (ii) the
effective date of any prospectus supplement to the
prospectus included in such registration statement or
post-effective amendment to such registration statement
which includes audited financial statements as of a date
or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such
registration statement contemplates an underwritten
offering pursuant to any prospectus supplement to the
prospectus included in such registration statement or
post-effective amendment to such registration statement
which includes unaudited or audited financial statements
as of a date or for a period subsequent to that of the
latest such statements included in such prospectus, dated
the date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in
customary form and covering such matters of the type
customarily covered by letters of such type in public
offerings of debt securities of the Company; (D) deliver
such documents and certificates, including officers' or
trustees' or Administrative Trustees' certificates, as
applicable, as may be reasonably requested by any holders
of at least 25% in aggregate principal amount of the
Securities at the time outstanding or the placement or
sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of
the representations and warranties made pursuant to
clause (A) above and the compliance with or satisfaction
of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by
the Company or the Trust, as applicable; and (E)
undertake such obligations relating to expense
reimbursement, indemnification and contribution as are
provided in Section 6 hereof.
(t) The Company will use reasonable efforts to
cause the Capital Securities or the Exchange Capital
Securities, as applicable, covered by a Registration
Statement to be rated with an appropriate rating agency,
if so requested by Holders of a majority in aggregate
liquidation amount of Capital Securities covered by such
Registration Statement or the Exchange Capital
Securities, as the case may be, or by the managing
underwriters, if any.
(u) The Company will use reasonable efforts to
cause the Capital Securities or the Exchange Capital
Securities, as applicable, relating to such Registration
Statement to be listed on each securities exchange, if
any, on which debt securities issued by the Company are
then listed, if so requested by Holders of a majority in
aggregate liquidation amount of Capital Securities
covered by such Registration Statement or the Exchange
Capital Securities, as the case may be, or by the
managing underwriters, if any.
(v) In the case of a Shelf Registration
Statement, the Company and/or the Trust shall notify in
writing each holder of Securities of any proposal by the
Company and/or the Trust to amend or waive any provision
of this Registration Rights Agreement pursuant to Section
9(a) hereof and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the
text of the amendment or waiver proposed or effected, as
the case may be;
(w) In the case of a Shelf Registration
Statement, in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Securities or
participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the
meaning of the Rules of Conduct and the By-Laws of the
National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time
to time) thereof, whether as a holder of such Securities
or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the
Company and the Trust shall assist such broker-dealer in
complying with the requirements of such Rules and
By-Laws, including by (A) if such Rules shall so require,
permitting a "qualified independent underwriter" (as
defined in such Rules (or any successor thereto)) to
participate in the preparation of the registration
statement relating to such Securities, to exercise usual
standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such registration
statement is an underwritten offering or is made through
a placement or sales agent, to recommend the yield of
such Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the
indemnification of underwriters provided in Section 6
hereof, and (C) providing such information to such
broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the
Rules of Conduct of the NASD.
(x) In the case of a Shelf Registration
Statement, each Holder of Securities agrees by
acquisition of such Securities that, upon receipt of any
notice of the Company pursuant to Section 4(b)(ii)
through (v) hereof, such Holder will discontinue
disposition of such Securities covered by such
Registration Statement until such Holder's receipt of
copies of the supplemental or amended prospectus
contemplated by Section 4(j) hereof, or until advised in
writing (the "Resumption Notice") by the Company that the
use of the applicable prospectus may be resumed.
5. REGISTRATION EXPENSES. The Company agrees
to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the
Company's and the Trust's performance of or compliance
with this Registration Rights Agreement, including the
reasonable fees and disbursements of one firm of
attorneys (in addition to local counsel) chosen by the
Holders of a majority in aggregate principal amount of
the Securities and the Exchange Securities to be sold
pursuant to a Registration Statement (the "Special
Counsel") acting for the Holders in connection therewith
(the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by
any Holder, or any placement or sales agent therefor or
underwriter thereof on behalf of the Company or the
Trust, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred,
assumed or paid promptly after receipt of a request
therefor with appropriate documentation in support
thereof. The Holders shall be responsible for all
underwriting commissions and discounts in the case of a
Shelf Registration Statement.
6. INDEMNIFICATION.
(a) Upon the registration of the Securities
pursuant to Section 1 or 2 hereof, and in consideration
of the agreements of the Initial Purchasers contained
herein, and as an inducement to the Initial Purchasers to
purchase the Capital Securities, each of the Company and
the Trust shall, and it hereby agrees jointly and
severally to, indemnify and hold harmless each of the
holders of Securities to be included in such
registration, and each person who participates as an
underwriter in any offering or sale of such Securities
and each person who controls any such person against any
losses, claims, damages or liabilities, joint or several,
to which such holder or underwriter may become subject
under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any
registration statement under which such Securities were
registered under the Securities Act, or any preliminary,
final or summary prospectus contained therein or
furnished by the Company or the Trust to any such holder
or underwriter, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading and each of the Company and the
Trust shall, and it hereby agrees jointly and severally
to, reimburse each such holder or underwriter for any
legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however,
that the Company and the Trust shall not be liable to any
such person in any such case to the extent that any such
loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto, in
reliance upon and in conformity with written information
furnished to the Company and the Trust by holders of
Securities expressly for use therein. This indemnity
agreement will be in addition to any liability which the
Company or the Trust may otherwise have.
(b) The Company and the Trust may require, as
a condition to including any Securities in any
registration statement filed pursuant to Section 1 or 2
hereof or to entering into any underwriting agreement
with respect thereto, that the Company and the Trust
shall have received an undertaking reasonably
satisfactory to it from the holder of such Securities and
from each underwriter named in any such underwriting
agreement, severally and not jointly, to indemnify and
hold harmless the Company and the Trust, each of the
Company's directors, and each person who controls the
Company or the Trust within the meaning of either the
Securities Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company and the Trust,
but only with reference to written information furnished
to the Company and the Trust by or on behalf of such
person specifically for use in any registration
statement, or any preliminary or final or summary
prospectus contained therein or any amendment or
supplement thereto. This indemnity agreement will be in
addition to any liability which any such person may
otherwise have.
(c) Promptly after receipt by an indemnified
party under Section 6(a) or (b) of notice of the
commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement
thereof; provided, however, that failure to so notify an
indemnifying party shall not relieve such indemnifying
party from any obligation that it may have pursuant to
this Section except to the extent it has been materially
prejudiced by such failure; provided further, however,
that the failure to notify the indemnifying party shall
not relieve it from any liability that it may have to an
indemnified party otherwise than on account of this
Section. If any such claim or action shall be brought
against an indemnified party, and the indemnified party
notifies the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to
the extent that it may elect by written notice delivered
to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, jointly
with any other similarly notified indemnifying party, to
assume the defense thereof with counsel satisfactory to
the indemnified party, provided that, if the defendants
in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties
which are different from or additional to those available
to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of
notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim
or action and approval by the indemnified party of
counsel, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided,
however, that an indemnified party will have the right to
employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the
indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in
accordance with the proviso to the next preceding
sentence, (3) a conflict or potential conflict exists
(based on advice of counsel to the indemnified party)
between the indemnified party and indemnifying party (in
which case the indemnifying party will not have the right
to direct the defense of such action on behalf of the
indemnified party) or (4) the indemnifying party has not
in fact employed counsel satisfactory to the indemnified
party to assume the defense of such action within a
reasonable time after receiving notice of the
commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party
or parties. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other
charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all
such indemnified party or parties. Each indemnified
party shall use all reasonable efforts to cooperate with
the indemnifying party in the defense of any such action
or claim. No indemnifying party shall be liable for any
settlement of any such action effected without its
written consent, but if settled with its written consent
or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have
been a party and indemnity could have been sought
hereunder by such indemnified party, unless such
settlement includes an unconditional release of such
indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) Each party hereto agrees that, if for any
reason the indemnification provisions contemplated by
Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein (other
than by reason of the exceptions to the indemnification
obligations set forth in such Sections), then each
applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party
and indemnified party in connection with the statements
or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state
a material fact relates to information supplied by such
indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim.
The parties hereto agree that it would not be
just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even
if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by
any other method of allocation that does not take into
account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the
provisions of this Section, an indemnifying party that is
a holder of Transfer Restricted Securities or Exchange
Securities shall not be required to contribute any amount
in excess of the amount by which the dollar amount of the
proceeds received by such holder from the sale of any
Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any
damages that such holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement
or omission or alleged omission, and no underwriter shall
be required to contribute any amount in excess of the
amount by which the total price at which the Securities
underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages
which such underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of
Section ll(f) of the Securities Act) shall be entitled to
any contribution from any person who was not guilty of
such fraudulent misrepresentation. The holders' and any
underwriters' obligations in this Section 6(d) to
contribute shall be several in proportion to the
principal amount of Securities registered or
underwritten, as the case may be, by them and not joint.
7. RULES 144 AND 144A. The Company shall use
its best efforts to file the reports required to be filed
by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written
request of any holder of Transfer Restricted Securities,
make publicly available other information so long as
necessary to permit sales of such holder's securities
pursuant to Rules 144 and 144A. The Company covenants
that it will take such further action as any holder of
Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable
such holder to sell Transfer Restricted Securities
without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and
144A (including, without limitation, the requirements of
Rule 144A(d)(4)). Upon the written request of any holder
of Transfer Restricted Securities, the Company shall
deliver to such holder a written statement as to whether
it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed
to require the Company or the Trust to register any of
its securities pursuant to the Exchange Act.
8. UNDERWRITTEN REGISTRATIONS. If any of the
Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten
offering, the investment banker or investment bankers and
manager or managers that will administer the offering
will be selected by the holders of a majority in
aggregate liquidation amount of Capital Securities to be
included in such offering, subject to the consent of the
Company (which shall not be unreasonably withheld or
delayed). The Holders shall be responsible for all
underwriting commissions and discounts.
No person may participate in any underwritten
registration hereunder unless such person (i) agrees to
sell such person's Transfer Restricted Securities on the
basis provided in any underwriting arrangements approved
by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably
required under the terms of such underwriting
arrangements.
9. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of
this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the
Company and the Trust have obtained the written consent
of Holders of a majority in aggregate liquidation amount
of the Capital Securities and the Exchange Capital
Securities, taken as a single class. Notwithstanding the
foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates
exclusively to the rights of the Holders of Securities
whose Securities or Exchange Securities are being sold
pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders
may be given by Holders of a majority in aggregate
liquidation amount of the Capital Securities or Exchange
Capital Securities being sold by such Holders pursuant to
such Registration Statement.
(b) NOTICES. All notices and other
communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a Holder, at the most current
address given by such Holder to the Trust in accordance
with the provisions of this Section 9(b), which address
initially is, with respect to each Holder, the address of
such Holder maintained by the Trustee under the Trust
Agreement;
(2) if to you, initially at the respective
addresses set forth in the Purchase Agreement; and
(3) if to the Company or the Trust, initially
at the address set forth in the Purchase Agreement.
All such notices and communications shall be
deemed to have been duly given: when delivered by hand,
if personally delivered; one business day after being
delivered to a next-day air courier; five business days
after being deposited in the mail; when answered back, if
faxed; and when receipt is acknowledged by the
recipient's telecopier machine, if telecopied.
(c) SUCCESSORS AND ASSIGNS. All the terms and
provisions of this Registration Rights Agreement shall be
binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of
the parties hereto. In the event that any transferee of
any holder of Securities shall, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise
acquire Transfer Restricted Securities, such transferee
shall, without any further writing or action of any kind,
be deemed a party hereto for all purposes and such
Securities shall be held subject to all of the terms of
this Registration Rights Agreement, and by taking and
holding such Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to
have agreed to be bound by and to perform, all of the
applicable terms and provisions of this Registration
Rights Agreement.
(d) COUNTERPARTS. This Agreement may be
executed in any number of counterparts (which may be
delivered in original form or by telecopies) and by the
parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the
same agreement.
(e) HEADINGS. The headings in this Agreement
are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
(f) GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY AND THE TRUST HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT
OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPT FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
THE COMPANY AND THE TRUST IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TRIAL BY JURY AND ANY OBJECTION THAT THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY HOLDER OF A TRANSFER RESTRICTED SECURITY TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
(g) REMEDIES. In the event of a breach by the
Company, the Trust or a holder of Transfer Restricted
Securities, of any of their obligations under this
Agreement, each holder of Transfer Restricted Securities
or the Company or the Trust, as the case may be, in
addition to being entitled to exercise all rights granted
by law, including recovery of damages (other than the
recovery of damages for a breach by the Company or the
Trust of their obligations under Sections 1 and 2 hereof
for which liquidated damages have been paid pursuant to
Section 3 hereof), will be entitled to specific
performance of its rights under this Agreement. The
Company, the Trust and each holder of Transfer Restricted
Securities agree that, except for such liquidated
damages, when payable monetary damages would not be
adequate compensation for any loss incurred by reason of
a breach by it of any of the provisions of this Agreement
and hereby further agree that, in the event of any action
for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be
adequate.
(h) NO INCONSISTENT AGREEMENTS. The Company
and the Trust have not, nor shall they on or after the
date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the holders of
Transfer Restricted Securities in this Agreement or
otherwise conflicts with the provisions hereof. The
Company and the Trust have not previously entered into
any agreement which remains in effect granting any
registration rights with respect to any capital
securities to any person. Without limiting the
generality of the foregoing, without the written consent
of the holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted
Securities, the Company and the Trust shall not grant to
any person the right to request the Company to register
any capital securities of the Company or the Trust under
the Securities Act unless the rights so granted are
subject in all respects to the prior rights of the
holders of Transfer Restricted Securities set forth
herein, and are not otherwise in conflict or inconsistent
with the provisions of the Agreement.
(i) NO PIGGYBACK ON REGISTRATIONS. Neither
the Company nor any of its securityholders (other than
the holders of Transfer Restricted Securities in such
capacity) shall have the right to include any securities
of the Company in any Shelf Registration or Exchange
Offer other than Transfer Restricted Securities.
(j) SEVERABILITY. The remedies provided
herein are cumulative and not exclusive of any remedies
provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an
alternative means to achieve the same or substantially
the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the
parties that they would have executed the remaining
terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(k) SURVIVAL. The respective indemnities,
agreements, representations, warranties and each other
provision set forth in this Registration Rights Agreement
or made pursuant hereto shall remain in full force and
effect regardless of any investigation (or statement as
to the results thereof) made by or on behalf of any
holder of Securities, any director, officer or partner of
such holder, any agent or underwriter or any director,
officer or partner thereof, or any controlling person of
any of the foregoing, and shall survive delivery of and
payment for the Securities pursuant to the Purchase
Agreement and the transfer and registration of Securities
by such holder and the consummation of an Exchange Offer.
(l) INSPECTION. For so long as this
Registration Rights Agreement shall be in effect, this
Registration Rights Agreement and a complete list of the
names and addresses of all the holders of Securities
shall be made available, upon reasonable prior notice to
the Company, the Property Trustee or the Trustee under
the Indenture, as applicable, for inspection and copying
on any business day by any holder of Securities for
proper purposes only (which shall include any purpose
related to the rights of the holders of Securities under
the Securities, the Indenture and this Agreement) at the
offices of the Company at the address thereof referenced
in Section 9(b) above, at the office of the Property
Trustee or at the office of the Trustee under the
Indenture.
Please confirm that the foregoing correctly
sets forth the agreement between the Company and you.
Very truly yours,
HSB CAPITAL I
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Administrative Trustee
HSB GROUP, INC.
By: /s/ R. Xxxxx Xxxxx
Name: R. Xxxxx Xxxxx
Title: Senior Vice President and
Corporate Secretary
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Conning & Co.
By: /s/ Xxxxxxx, Sachs & Co.
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Initial Purchasers
ANNEX A
Each broker-dealer that receives Exchange
Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in
connection with resales of Exchange Securities received
in exchange for Securities where such Securities were
acquired by such broker-dealer as a result of
marketmaking activities or other trading activities. The
Company has agreed that, for a period of 180 days after
the Expiration Date (as defined herein), it will make
this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange
Securities for its own account in exchange for
Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will
deliver a prospectus in connection with any resale of
such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange
Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange
Securities received in exchange for Securities where such
Securities were acquired as a result of market-making
activities or other trading activities. The Company has
agreed that, for a period of 180 days after the
Expiration Date, it will make this prospectus, as amended
or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until
, 199 , all dealers effecting
transactions in the Exchange Securities may be required
to deliver a prospectus./*/
The Company will not receive any proceeds from
any sale of Exchange Securities by broker-dealers.
Exchange Securities received by broker-dealers for their
own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Securities
or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers
of any such Exchange Securities. Any broker-dealer that
resells Exchange Securities that were received by it for
its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act
and any profit on any such resale of Exchange Securities
and any commission or concessions received by any such
persons may be deemed to be underwriting compensation
under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration
Date the Company will promptly send additional copies of
__________________
/*/ In addition, the legend required by Item 502(e) of
Regulation S-K will appear on the back cover page of
the Exchange Offer prospectus.
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.
ANNEX D
[ ] check here if you are a broker-dealer and wish to receive
10 additional copies of the prospectus and 10 copies of
any amendments or supplements thereto.
Name:
Address:
If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and
does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that
will receive Exchange Securities for its own account in
exchange for Securities that were acquired as a result of
market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Securities;
however, by so acknowledging and delivering a prospectus,
the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
