EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 30, 1997 (this
"Agreement"), among FIRST HAWAIIAN, INC., a Delaware corporation (the
"Company"), FIRST HAWAIIAN CAPITAL I, a Delaware statutory business trust
(the "Issuer Trust"), and XXXXXXX, XXXXX & CO., as the initial purchaser (the
"Initial Purchaser") of the 8.343% Capital Securities, Series A of the Issuer
Trust, which are guaranteed by the Company.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Administrative Trustees" means the Administrative Trustees for
the Issuer Trust under the Trust Agreement.
(b) "Capital Securities" means the 8.343% Capital Securities, Series
A, Liquidation Amount $1,000 per Capital Security, to be issued under the
Trust Agreement and sold by the Issuer Trust to the Initial Purchaser,
and securities issued in exchange therefor, other than Debentures, or in
lieu thereof pursuant to the Trust Agreement.
(c) "Closing Date" means the date on which the Capital Securities are
initially issued.
(d) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(e) "Debentures" means the 8.343% Junior Subordinated Deferrable
Interest Debentures due July 1, 2027 of the Company to be issued under
the Indenture, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
(f) "Effective Time", in the case of (i) an Exchange Offer, means the
time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, means the time and date as of which the Commission declares
the Shelf Registration effective or as of which the Shelf Registration
otherwise becomes effective.
(g) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
(h) "Exchange Offer" has the meaning assigned thereto in Section
2(a).
(i) "Exchange Offer Registration Statement" has the meaning assigned
thereto in Section 2(a).
(j) "Exchange Registration" has the meaning assigned thereto in
Section 3(f).
(k) "Exchange Securities" has the meaning assigned thereto in Section
2(a).
(l) "Guarantee" means the guarantee of the Capital Securities by the
Company under the Guarantee Agreement, dated as of June 30, 1997, between
the Company and The First National Bank of Chicago, as Guarantee Trustee.
(m) "Holder" means the Initial Purchaser for so long as it owns any
Registrable Securities, and such of its respective successors and assigns
who acquire Registrable Securities, directly or indirectly, from such
person or from any successor or assign of such person, in each case for
so long as such person owns any Registrable Securities.
(n) "Indenture" means the Junior Subordinated Indenture, dated as of
June 30, 1997, between the Company and The First National Bank of
Chicago, as Trustee, as the same shall be amended from time to time.
(o) "Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
(p) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(q) "Registrable Securities" means the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i) in
the circumstances contemplated by Section 2(a) hereof, such Securities
have been exchanged for Exchange Securities in an Exchange Offer as
contemplated in Section 2(a) (provided that any Exchange Securities
received by a broker-dealer in an Exchange Offer in exchange for
Registrable Securities that were not acquired by the broker-dealer
directly from the Company will also be Registrable Securities through and
including the earlier of the 180th day after the Exchange Offer is
completed or such time as such broker-dealer no longer owns such Exchange
Securities); (ii) in the circumstances contemplated by Section 2(b), a
registration statement registering such Securities under the Securities
Act has been declared or becomes effective and such Securities have been
sold or otherwise transferred by the holder thereof pursuant to such
effective registration statement; (iii) such Securities are sold pursuant
to Rule 144 under circumstances in which any legend borne by such
Securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or such Securities are eligible
to be sold pursuant to paragraph (k) of Rule 144; or (iv) such Securities
shall cease to be outstanding.
(r) "Registration Default" has the meaning assigned thereto in
Section 2(c).
(s) "Registration Default Interest" has the meaning assigned thereto
in Section 2(c).
(t) "Registration Default Distributions" has the meaning assigned
thereto in Section 2(c).
(u) "Registration Expenses" has the meaning assigned thereto in
Section 4.
(v) "Resale Period" has the meaning assigned thereto in Section
2(a).
(w) "Restricted Holder" means (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's
business, (iii) a holder who has arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities, or (iv) a broker-dealer who receives
Securities for its own account but did not acquire the Securities as a
result of market-making activities or other trading activities.
(x) "Rule 144," "Rule 405" and "Rule 415" means, in each case, such
rule promulgated under the Securities Act.
(y) "Securities" means, collectively, the Capital Securities, the
Guarantee and the Debentures.
(z) "Securities Act" means the Securities Act of 1933.
(aa) "Shelf Registration" has the meaning assigned thereto in Section
2(b).
(ab) "Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of June 30, 1997, among the Company, as Depositor,
The First National Bank of Chicago, as Property Trustee, First Chicago
Delaware Inc., as Delaware Trustee, and the Administrative Trustees.
(ac) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
(ad) "Trust Securities" means, collectively, the Common Securities to
be issued under the Trust Agreement to the Company and the Capital
Securities.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Agreement, and the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision. Unless the context otherwise
requires, any reference to a statute, rule or regulation refers to the same
(including any successor statute, rule or regulation thereto) as it may be
amended from time to time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b), the Company and the Issuer
Trust agree to use their reasonable best efforts to file under the Securities
Act within 150 days after the Closing Date, a registration statement (the
"Exchange Offer Registration Statement") relating to an offer to exchange
(the "Exchange Offer") any and all of the Securities for a like aggregate
amount of capital securities issued by the Issuer Trust and guaranteed by the
Company and underlying junior subordinated deferrable interest debentures of
the Company, which capital securities, guarantee and debentures have the same
terms as the Capital Securities, the Guarantee and the Debentures,
respectively (and are entitled to the benefits of trust indentures which have
been qualified under the Trust Indenture Act), except that they have been
registered pursuant to an effective registration statement under the
Securities Act, do not contain restrictions on transfers and do not contain
provisions for the additional interest and additional distributions
contemplated in Section 2(c) below (such new securities hereinafter called
"Exchange Securities"). The Company and the Issuer Trust agree to use their
reasonable best efforts to cause the Exchange Offer Registration Statement to
become effective under the Securities Act within 180 days after the Closing
Date. The Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company and the Issuer Trust further
agree to use their reasonable best efforts to commence and complete the
Exchange Offer promptly after the Exchange Offer Registration Statement has
become effective, hold the Exchange Offer open for at least 30 days (or
longer if required by applicable law) and Exchange Securities for all
Securities that have been properly tendered and not withdrawn on or prior to
the expiration of the Exchange Offer. The Exchange Offer will be deemed
completed only if the Exchange Securities received by holders other than
Restricted Holders in the Exchange Offer for Securities are, upon receipt,
transferable by each such holder without restriction imposed thereon by the
Securities Act or the Exchange Act and without material restrictions imposed
thereon by 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 Company and the Issuer Trust having exchanged,
pursuant to the Exchange Offer, Exchange Securities for all Securities that
have been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days following
the commencement of the Exchange Offer. The Company and the Issuer Trust
agree (x) to include in the registration statement a prospectus for use in
connection with any resales of Exchange Securities by a holder that is a
broker-dealer, other than resales of Exchange Securities received by a
broker-dealer pursuant to the Exchange Offer in exchange for Registrable
Securities acquired by such broker-dealer directly from the Issuer Trust, and
(y) to keep the Exchange Offer Registration Statement effective for a period
(the "Resale Period") beginning when Exchange Securities are first issued in
the Exchange Offer and ending upon the earlier of (i) either (a) the
expiration of the 180th day after the Exchange Offer has been completed or
(b) in the event the Company and the Issuer Trust have at any time notified
any broker-dealers pursuant to Section 3(f)(ii)(F), 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 Issuer Trust give notice pursuant to
Section 3(f)(ii)(F) 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 Issuer
Trust give notice that the resale of Exchange Securities under the Exchange
Offer Registration Statement may resume or (ii) such time as such broker-
dealers no longer own any Registrable Securities.
(b) If (i) because of any change in law or in applicable interpretations
by the staff of the Commission, the Company and the Issuer Trust are not
permitted to effect the Exchange Offer, (ii) the Exchange Offer Registration
Statement is not declared effective within 180 days of the Closing Date,
(iii) the Initial Purchaser so requests (but only with respect to the Capital
Securities) within 60 days after the consummation of the Exchange Offer with
respect to any Capital Securities held by the Initial Purchaser which are not
freely transferable following consummation of the Exchange Offer, (iv) in the
case of any holder, other than a Restricted Holder, that participates in the
Exchange Offer, such holder does not receive Exchange Securities on the date
of the exchange that may be sold without restriction under state and federal
securities laws (other than due solely to the status of such holder as an
affiliate of any of the Company or the Issuer Trust within the meaning of the
Securities Act), or (v) 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 Issuer Trust would be subject to
United States federal income tax with respect to income received or accrued
on the Junior Subordinated Debentures or Exchange Debentures, (y) interest
payable by the Company on such Junior Subordinated Debentures or Exchange
Debentures would not be deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (z) the Issuer Trust would be
subject to more than a de minimis amount of other taxes, duties or other
governmental charges, then in addition to or in lieu of conducting the
Exchange Offer contemplated by Section 2(a), the Company and the Issuer Trust
shall file under the Securities Act as promptly as practicable a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by
the Commission (the "Shelf Registration"). The Administrative Trustees will
promptly deliver to the holders of the Capital Securities, the Property
Trustee and the Delaware Trustee, or the Company will promptly deliver to the
holders of the Debentures, if not the Issuer Trust, written notice that the
Company and the Issuer Trust will be complying with the provisions of this
Section 2(b). The Company and the Issuer Trust agree to use their reasonable
best efforts to cause the Shelf Registration to become or be declared
effective and to keep such Shelf Registration continuously effective for a
period ending on the earlier of (i) either (x) the second anniversary of the
Closing Date or (y) in the event the Company and the Issuer Trust have at any
time suspended the use of the prospectus contained in the Shelf Registration
pursuant to Section 3(c), the date beyond the second anniversary of the
Closing Date 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 Issuer Trust give notice of such suspension pursuant to Section 3(c)
to and including the date when holders of Registrable Securities receive an
amended or supplemented prospectus necessary to permit resales of Registrable
Securities under the Shelf Registration or to and including the date on which
the Company and Issuer Trust give notice that the resale to Registrable
Securities may resume or (ii) such time as there are no longer any
Registrable Securities outstanding. The Company and the Issuer Trust further
agree to supplement or make amendments to the Shelf Registration, as and when
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration or by the Securities Act
or rules and regulations thereunder for shelf registration, and the Company
and the Issuer Trust agree to furnish to the holders of the Registrable
Securities copies of any such supplement or amendment prior to its being used
or promptly following its filing with the Commission.
(c) If either the Company or the Issuer Trust fails to comply with this
Agreement or if the Exchange Offer Registration Statement or the Shelf
Registration fails to become effective (any such event a "Registration
Default"), then, as liquidated damages, registration default interest (the
"Registration Default Interest") shall become payable in respect of the
Debentures, and corresponding registration default Distributions (the
"Registration Default Distributions"), shall become payable on the Trust
Securities as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration is filed with the Commission on or prior to the 150th
day after the Closing Date or (B) notwithstanding that the Company and
the Issuer Trust have consummated or will consummate an Exchange Offer,
the Company and the Issuer Trust are required by this Agreement to file a
Shelf Registration and such Shelf Registration is not filed on or prior
to the date required by this Agreement, then commencing on the day after
either such required filing date, Registration Default Interest shall
accrue on the principal amount of the Debentures, and Registration
Default Distributions shall accumulate on the Liquidation Amount of the
Trust Securities, each at a rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration is declared effective by the Commission on or prior to
the 30th day after the applicable required filing date or (B)
notwithstanding that the Company and the Issuer Trust have consummated or
will consummate an Exchange Offer, the Company and the Issuer are
required by this Agreement to file a Shelf Registration and such Shelf
Registration is not declared effective by the Commission on or prior to
the 30th day after the date such Shelf Registration was required to be
filed, then commencing on the 31st day after the applicable required
filing date, Registration Default Interest shall accrue on the principal
amount of the Debentures, and Registration Default Distributions shall
accumulate on the Liquidation Amount of the Trust Securities, each at a
rate of 0.25% per annum; or
(iii) if (A) the Issuer Trust and the Company have not exchanged
Exchange Securities for all Securities validly tendered and not
withdrawn, in accordance with the terms of the Exchange Offer, on or
prior to the 30th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if applicable, the
Shelf Registration has been declared effective and such Shelf
Registration ceases to be effective at any time prior to the second
anniversary of the Closing Date (other than after such time as there are
no longer any Registrable Securities), then Registration Default Interest
shall accrue on the principal amount of Debentures, and Registration
Default Distributions shall accumulate on the Liquidation Amount of the
Trust Securities, each at a rate of 0.25% per annum commencing on (x) the
31st day after such effective date, in the case of (A) above, or (y) the
day such Shelf Registration ceases to be effective, in the case of (B)
above;
provided, however, that neither the Registration Default Interest rate on the
Debentures, nor the Registration Default Distributions rate on the
Liquidation Amount of the Trust Securities, shall exceed in the aggregate
0.25% per annum; provided further, however, that (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration (in the case of
clause (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration (in the case of clause (ii)
above), (3) upon the exchange of Exchange Securities for all securities
validly tendered and not withdrawn (in the case of clause (iii) (A) above),
or upon the effectiveness of the Shelf Registration which had ceased to
remain effective (in the case of clause (iii) (B) above), or (4) upon the
termination of certain transfer restrictions on the Securities as a result of
the application of Rule 144(k), Registration Default Interest on the
Debentures and Registration Default Distributions on the Liquidation
Amountsult of such clause (or the relevant subclause thereof), as the case
may be, shall cease to accrue or accumulate.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post-effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
(e) Notwithstanding any other provision of this Agreement, in the event
that Debentures are distributed to holders of Capital Securities in
liquidation of the Issuer Trust pursuant to the Trust Agreement (a) all
references in this Section 2 and Section 3 to Securities, Registrable
Securities and Exchange Securities shall not include the Capital Securities
and Guarantee or Capital Securities and Guarantee issued or to be issued in
exchange therefor in the Exchange Offer, (ii) all requirements for action to
be taken by the Issuer Trust in this Section 2 and Section 3 shall cease to
apply and all requirements for action to be taken by the Company in this
Section 2 and Section 3 shall apply to Debentures and Debentures issued or to
be issued in exchange therefor in the Exchange Offer.
(f) Notwithstanding any other provision of this Agreement, no holder
of Registrable Securities who does not comply with the provisions of Section
3(d), if applicable, shall be entitled to receive Registration Default
Interest or Registration Default Distributions, as the case may be, unless
and until such holder complies with the provisions of such section, if
applicable.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company and the Issuer Trust shall
qualify the Indenture, the Trust Agreement and the Guarantee under the Trust
Indenture Act.
(b) In connection with the Company's and the Issuer Trust's obligations
with respect to the Shelf Registration, if applicable, the Company and the
Issuer Trust shall, as soon as reasonably practicable (or as otherwise
specified herein):
(i) prepare and file with the Commission a registration statement
with respect to the Shelf Registration on any form which may be utilized
by the Issuer Trust and the Company and which shall permit the disposi-
tion of the Registrable Securities in accordance with the intended method
or methods thereof, as specified in writing by the holders of the
Registrable Securities, and use their best efforts to cause such
registration statement to become effective as soon as practicable there-
after;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of
such registration statement for the period specified in Section 2(b) and
as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
registration statement, and furnish to the holders of the Registrable
Securities copies of any such supplement or amendment simultaneously with
or prior to its being used or filed with the Commission;
(iii) comply, as to all matters within the Company's and the Issuer
Trust's control, with the provisions of the Securities Act with respect
to the disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof provided for in such registration
statement;
(iv) provide to any of (A) the holders of the Registrable Securities
to be included in such registration statement, (B) the underwriters
(which term, for purposes of this Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or placement agent, if
any, therefor, (D) counsel for such underwriters or agent and (E) not
more than one counsel for all the holders of such Registrable Securities
who so request of the Company in writing the opportunity to participate
in the preparation of such registration statement, each prospectus
included therein or filed with the Commission and each amendment or
supplement thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2(b), make
available at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(b)(iv), who shall certify to the Company and the
Issuer Trust that they have a current intention to sell their Registrable
Securities pursuant to the Shelf Registration, such financial and other
information and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however, that each such party shall be
required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by the Company in
writing as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in
such registration statement or otherwise), or (B) such person shall be
required so to disclose such information pursuant to a subpoena or order
of any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and only
after such person shall have given the Company prompt prior written
notice of such requirement and the opportunity to contest the same or
seek an appropriate protective order), or (C) such information is
required to be set forth in such registration statement or the prospectus
included therein or in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that such
registration statement, prospectus, amendment or supplement, as the case
may be, does not contain an untrue statement of a material fact or omit
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vi) promptly notify the selling holders of Registrable Securities,
the sales or placement agent, if any, therefor and the managing
underwriter or underwriters, if any, thereof named in the Shelf
Registration or a supplement thereto, and confirm such notice in writing,
(A) when such registration statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment has
been filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B) after
the initial effective date of the Shelf Registration Statement, of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement
or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or written threat of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company or the Issuer Trust contemplated by Section
3(b)(xv) or Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company or the Issuer Trust of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
written threat of any proceeding for such purpose, or (F) at any time
when a prospectus is required to be delivered under the Securities Act,
that such registration statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing;
(vii) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, any
placement or sales agent or any holder of Registrable Securities,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission relating to the terms of the sale of such
Registrable Securities, including information with respect to the
principal amount of Registrable Securities being sold by such holder or
agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities
and any discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the offering of the Registrable
Securities to be sold by such holder or agent or to such underwriters;
and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(ix) furnish to each holder of Registrable Securities, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof and
the respective counsel referred to in Section 3(b)(iv) an executed copy
(or, in the case of a holder of Registrable Securities, a conformed copy)
of such registration statement, each such amendment or supplement thereto
(in each case including all exhibits thereto and (in the case of a holder
of Registrable Securities, upon request) documents incorporated by
reference therein) and such number of copies of such registration
statement (excluding exhibits thereto and documents incorporated by
reference therein unless specifically so requested by such holder, agent
or underwriter, as the case may be) and of the prospectus included in
such registration statement (including each preliminary prospectus and
any summary prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder, and such
other documents, as such holder, agent, if any, or underwriter, if any,
may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder, offered
or sold by such agent or underwritten by such underwriter and to permit
such holder, agent or underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company and the Issuer Trust
hereby consent to the use of such prospectus (including any such
preliminary or summary prospectus) and any amendment or supplement
thereto by each such holder and by any such agent and underwriter, in
each case in the form most recently provided to such person by the
Company or the Issuer Trust, in connection with the offering and sale of
the Registrable Securities covered by the prospectus (including any such
preliminary or summary prospectus) or any supplement or amendment
thereto;
(x) use its reasonable best efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement
under such securities laws or blue sky laws of such United States
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, and (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) and for so long as may be necessary to enable any such
holder, agent or underwriter to complete its distribution of Securities
pursuant to such registration statement but in any event not later than
the date through which the Company and the Issuer Trust are required to
keep the Shelf Registration effective pursuant to Section 2(b); provided,
however, that neither the Company nor the Issuer Trust shall be required
for any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(b)(x), (2) consent to general
service of process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement between it
and its stockholders;
(xi) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to be obtained by the Company or the
Issuer Trust to effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or holders to offer,
or to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not bear any
restrictive legends, except as may be required by applicable law; and, in
the case of an underwritten offering, enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
the Registrable Securities;
(xiii) provide a CUSIP number for all applicable Registrable
Securities, not later than the Effective Time;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provisions agreed
to by the Company relating to indemnification and contribution, and take
such other actions in connection therewith as any holders of Registrable
Securities aggregating at least 33 1/3% in aggregate principal or
liquidation amount of the Registrable Securities at the time outstanding
shall reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities; provided, that the Company
and the Issuer Trust shall not be required to enter into any such
agreement more than once with respect to all of the Registrable
Securities and may delay entering into such agreement until the
consummation of any underwritten public offering which the Company shall
have then undertaken;
(xv) in connection with an agreement of the type referred to in
Section (3)(b)(xiv) relating to an underwritten offering or an offering
through a placement or sales agent or any other entity or in connection
with not more than one request in connection with each Shelf
Registration, post-effective amendment thereto or prospectus supplement
by holders of Registrable Securities as set forth below, (A) make such
representations and warranties to the holders of such Registrable Securi-
ties 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 Issuer 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 or liquidation amount of
the Registrable Securities at the time outstanding may reasonably
request, addressed to such holder or holders and the placement or sales
agent, if any, therefor and the underwriters, if any, thereof and dated
the effective date of such registration statement (and if such
registration statement contemplates an underwritten offering of a part or
all of the Registrable Securities, dated the date of the closing under
the underwriting agreement relating thereto); (C) obtain a "cold comfort"
letter or letters from the independent auditors of the Company addressed
to the selling holders of Registrable Securities, the placement or sales
agent, if any, therefor or the underwriters, if any, thereof, dated (i)
the effective date of such registration statement and (ii) the issue date
of any prospectus supplement to the prospectus included in such
registration statement or the effective date of any post-effective amend-
ment 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 Registrable Securities at the time outstanding or
the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or those
contained in Section 5(a) hereof and the compliance with or satisfaction
of any agreements or conditions contained in the underwriting agreement
or other agreement entered into by the Company or the Issuer Trust, as
applicable; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in
Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Company and/or the Issuer Trust to amend or waive any
provision of this Registration Rights Agreement pursuant to Section 9(g)
and of any amendment or waiver effected pursuant thereto, each of which
notices shall contain the text of the amendment or waiver proposed or
effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules of Fair Practice and
the By-Laws of the National Association of Securities Dealers, Inc.
("NASD") or any successor thereto, as amended from time to time) thereof,
whether as a holder of such Registrable Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements
of such Rules and By-Laws, including by (A) if such Rules shall so
require, permitting a "qualified independent underwriter" (as defined in
such Schedule (or any successor thereto)) to participate in the prepara-
tion of the registration statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such
registration statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section
6, 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; and
(xviii) make generally available to its security holders as soon as
practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earning statement of
the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company or the Issuer
Trust, such obligation shall be subject to the provision of such information.
(c) In the event that the Company and the Issuer Trust would be required,
pursuant to Section 3(b)(vi)(F), to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor or the managing
underwriters, if any, thereof named in the Shelf Registration or a supplement
thereto of the existence of the circumstances described therein, the Company
and the Issuer Trust shall promptly prepare and furnish to each such holder,
to each placement or sales agent, if any, and to each such underwriter, if
any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
Each holder of Registrable Securities agrees that upon receipt of any notice
from the Company or the Issuer Trust, pursuant to Section 3(b)(vi)(F), such
holder shall forthwith discontinue (and cause any placement or sales agent or
underwriters acting on their behalf to discontinue) the disposition of
Registrable Securities pursuant to the registration statement applicable to
such Registrable Securities until such holder (i) shall have received copies
of such amended or supplemented prospectus and, if so directed by the Company
or the Issuer Trust, such holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
holder's possession of the prospectus covering such Registrable Securities at
the time of receipt of such notice or (ii) shall have received notice from
the Company or the Issuer Trust that the disposition of Registrable
Securities pursuant to the Shelf Registration may continue.
(d) The Company and the Issuer Trust may require each holder of
Registrable Securities as to which any registration pursuant to Section 2(b)
is being effected to furnish to the Company such information regarding such
holder and such holder's intended method of distribution of such Registrable
Securities as the Company and the Issuer Trust may from time to time
reasonably request in writing, but only to the extent that such information
is required in order to comply with the Securities Act. Each such holder
agrees to notify the Company and the Issuer Trust as promptly as practicable
of any inaccuracy or change in information previously furnished by such
holder to the Company and the Issuer Trust or of the occurrence of any event
in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such holder or such holder's intended method of disposition of such
Registrable Securities or omits to state any material fact regarding such
holder or such holder's intended method of disposition of such Registrable
Securities required to be stated therein or necessary to make the statements
therein not misleading, and promptly to furnish to the Company and the Issuer
Trust any additional information required to correct and update any
previously furnished information or required so that such prospectus shall
not contain, with respect to such holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(e) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined in
Rule 144) to, resell any of the Capital Securities or Debentures that have
been reacquired by any of them except pursuant to an effective registration
statement under the Securities Act.
(f) In connection with the Company's and the Issuer Trust's obligations
with respect to the registration of Exchange Securities as contemplated by
Section 2(a) (the "Exchange Registration"), if applicable, the Company and
the Issuer Trust shall, as soon as reasonably practicable (or as otherwise
specified):
(i) prepare and file with the Commission such amendments and
supplements to the Exchange Offer Registration Statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness thereof for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form
of the Exchange Offer Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies of
the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder, as such broker-dealer reasonably may
request prior to the expiration of the Resale Period, for use in
connection with resales of Exchange Securities;
(ii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in the Exchange Offer
Registration Statement, and confirm such advice in writing, (A) when any
prospectus amendment or supplement or post-effective amendment to the
Exchange Offer Registration Statement has been filed, and, with respect
to any post-effective amendment to the Exchange Offer Registration
Statement, when the same has become effective, (B) of any comments by the
Commission and by the Blue Sky or securities commissioner or regulator of
any state with respect thereto or any request by the Commission for
amendments or supplements to the Exchange Offer Registration Statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Exchange
Offer Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company and/or the Issuer Trust contemplated by Section
5 cease to be true and correct in all material respects, (E) of the
receipt by the Company or the Issuer Trust of any notification with
respect to the suspension of the qualification of the Exchange Securities
for sale in any United States jurisdiction or the initiation or
threatening in writing of any proceeding for such purpose, or (F) at any
time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that the Exchange Offer Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(iii) in the event that the Company and the Issuer Trust would be
required, pursuant to Section 3(f)(ii)(F), to notify any broker-dealers
holding Exchange Securities, promptly prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing or notify such broker-dealers
that the offer and sale of Exchange Securities pursuant to the Exchange
Offer Registration Statement may continue;
(iv) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Exchange Offer Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(v) use its reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer and (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period; provided, however, that
neither the Company nor the Issuer Trust shall be required for any such
purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(f)(v), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it and
its stockholders;
(vi) use its reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to be obtained by the
Company or the Issuer Trust to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Securities by
broker-dealers during the Resale Period;
(vii) provide a CUSIP number for all applicable Exchange Securities,
not later than the applicable Effective Time;
(viii) make generally available to its security holders as soon as
practicable but no later than eighteen months after the effective date of
such registration statement, an earning statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act (includ-
ing, at the option of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information
provided or to be provided by a party other than the Company or the Issuer
Trust, such obligation shall be subject to the provision of such information.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Company's and
the Issuer Trust's performance of or compliance with this Agreement,
including (a) all Commission and any NASD registration and filing fees and
expenses, (b) all fees and expenses in connection with the qualification of
the Securities or Exchange Securities for offering and sale under the State
securities and blue sky laws referred to in Section 3(b)(x) and Section
3(f)(v) hereof, including reasonable fees and disbursements of one counsel
for the placement or sales agent or underwriters, if any, in connection with
such qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribu-
tion pursuant hereto, each amendment or supplement to the foregoing, the
certificates representing the Securities and all other documents relating
hereto, (d) messenger and delivery expenses, (e) fees and expenses of the
Trustee under the Indenture, the Property Trustee and Debenture Trustee under
the Trust Agreement and the Guarantee Trustee under the Guarantee and of any
escrow agent or custodian, (f) internal expenses (including all salaries and
expenses of the Company's officers and employees performing legal or account-
ing duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such
performance and compliance) and (h) reasonable fees, disbursements and
expenses of one counsel for the holders of Registrable Securities retained in
connection with a Shelf Registration, as selected by the holders of at least
a majority in aggregate principal amount of the Registrable Securities being
registered and approved by the Company, and fees, expenses and disbursements
of any other persons, including special experts, retained by the Company in
connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred,
assumed or paid by any holder of Registrable Securities or any placement or
sales agent therefor or underwriter thereof, the Company shall reimburse such
person for the full amount of the Registration Expenses so incurred, assumed
or paid promptly after receipt of a documented request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities
being registered shall pay all agency fees and commissions and underwriting
discounts and commissions attributable to the sale of such Registrable
Securities and the fees and disbursements of any counsel or other advisors or
experts retained by such holders (severally or jointly), other than the
counsel and experts specifically referred to above.
5. Representations and Warranties.
Each of the Company and the Issuer Trust represents and warrants to, and
agrees with, the Initial Purchaser and each of the holders from time to time
of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(c) or Section 3(f)
hereof and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten
offering of Registrable Securities, at the time of the closing under the
underwriting agreement relating thereto, will conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and at all times
subsequent to the Effective Time when a prospectus would be required to
be delivered under the Securities Act, other than from (i) such time as a
notice has been given to holders of Registrable Securities pursuant to
Section 3(b)(vi)(F) or Section 3(f)(ii)(F) hereof until (ii) such time as
the Company furnishes an amended or supplemented prospectus pursuant to
Section 3(c) or Section 3(f)(iii) hereof or such time as the Company
provides notice that offers and sales pursuant to the Exchange Offer
Registration Statement or the Shelf Registration, as the case may be, may
continue, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursu-
ant to Section 3(b) or Section 3(f) hereof, as then amended or supple-
mented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company and the Issuer Trust by a
holder of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective
or are or were filed with the Commission, as the case may be, will
conform or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such
documents will contain or contained an untrue statement of a material
fact or will omit or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not mis-
leading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company and the
Issuer Trust by a holder of Registrable Securities expressly for use
therein.
(c) The compliance by the Company and the Issuer Trust with all of
the provisions of this Agreement and the consummation of the transactions
herein contemplated will not constitute a breach of or default under, the
corporate charter or by-laws of the Company, or the Trust Agreement of
the Issuer Trust, or any material agreement, indenture or instrument
relating to indebtedness for money borrowed to which the Company or, to
the best knowledge of the Company, the Issuer Trust is a party or any
law, order, rule, regulation or decree of any court or governmental
agency or authority located in the United States having jurisdiction over
the Company or any property of the Company or the Issuer Trust or any
property of the Issuer Trust, as applicable; and, to the best knowledge
of the Company and the Issuer Trust, no consent, authorization or order
of, or filing or registration with, any court or governmental agency or
authority is required for the consummation by the Company or the Issuer
Trust, as applicable, of the transactions contemplated by this Agreement,
except the registration under the Securities Act contemplated hereby,
qualification of the Indenture, the Guarantee and the Trust Agreement
under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
State securities or blue sky laws.
(d) This Agreement has been duly authorized, executed and delivered
by the Company or the Issuer Trust, as applicable.
6. Indemnification.
(a) Indemnification by the Company and the Issuer Trust. In connection
with a Shelf Registration or in connection with any delivery of a prospectus
included in the Exchange Offer Registration Statement by a broker-dealer
during the Resale Period as contemplated by Section 2(a), each of the Company
and the Issuer Trust shall, and it hereby agrees jointly and severally to,
indemnify and hold harmless each of the holders of Registrable Securities
included in such Shelf Registration, and each person who is named in such
Shelf Registration or a supplement thereto as a placement or sales agent or
as an underwriter in any offering or sale of such Registrable Securities and
each person who controls any such person (each, a "Participant") against any
losses, claims, damages or liabilities, joint or several, to which such
Participant 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 Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company or the Issuer Trust to any such
Participant, 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 Issuer Trust shall, and it hereby
agrees jointly and severally to, reimburse each such Participant for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company and the Issuer 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 Issuer Trust by such
Participant expressly for use therein. This indemnity agreement will be in
addition to any liability which the Company or the Issuer Trust may otherwise
have.
(b) Indemnification by Participants. The Company and the Issuer Trust may
require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 2(b) and to entering into
any underwriting agreement with respect thereto, that the Company and the
Issuer Trust shall have received an undertaking reasonably satisfactory to it
from each Participant, severally and not jointly, to indemnify and hold
harmless the Company and the Issuer Trust, each of the Company's directors,
officers and employees and each person who controls the Company or the Issuer
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 Issuer
Trust, but only with reference to written information furnished to the
Company and the Issuer Trust by or on behalf of such Participant 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; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under Section 6(a)
or (b). 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 elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such 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 such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the indemni-
fying party will not be liable to such indemnified party under Section 6(a)
or (b) for any legal or other expenses subsequently incurred by such
indemnified party (other than reasonable costs of investigation) in
connection with the defense thereof unless (i) 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 (it
being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate national counsel, approved by the
indemnifying party, representing the indemnified parties who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii).
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 includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action.
(d) Contribution. 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, then each indemnifying 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 the indemnified party in connection with the
statements or omissions which 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 by such indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The parties hereto agree that it would
not be just and equitable if contributions pursuant to this Section 6(d) were
determined by pro rata allocation (even if the Participants were treated as
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in this Section
6(d). 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. Notwithstanding the
provisions of this Section 6(d), no Participant shall be required to
contribute any amount in excess of the amount by which the dollar amount of
the proceeds received by such Participant from the sale of any Registrable
Securities exceeds the amount of any damages which such Participant 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 Registrable 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 11(f)
of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Participants'
obligations in this Section 6(d) to contribute shall be several in proportion
to the principal or liquidation amount of Registrable Securities registered
or underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company and the Issuer Trust under this
Section 6 shall be in addition to any liability which the Company and the
Issuer Trust may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each Participant and
each person, if any, who controls any Participant within the meaning of the
Securities Act or the Exchange Act; and the obligations of the Participants
contemplated by this Section 6 shall be in addition to any liability which
the respective Participants may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company), to each Trustee
under the Trust Agreement and to each person, if any, who controls the
Company and the Issuer Trust within the meaning of the Securities Act or the
Exchange Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be
designated by the holders of at least a majority in aggregate principal or
liquidation amount of the Registrable Securities to be included in such
offering, provided that such designated managing underwriter or underwriters
is or are acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate
in any underwritten offering hereunder unless such holder (i) agrees to sell
such holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that the
Company shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act
referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission
under the Securities Act) and the rules and regulations adopted by the
Commission thereunder, all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or
any similar or successor rule or regulation hereafter adopted by the Commis-
sion. Upon the request of any holder of Registrable Securities in connection
with that holder's sale pursuant to Rule 144, the Company shall deliver to
such holder a written statement as to whether it has complied with such
requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Company and the Issuer Trust
represents, warrants, covenants and agrees that it has not granted, and shall
not grant, registration rights with respect to Registrable Securities which
would be inconsistent with the terms contained in this Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to
it at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, Attention: Xxxxxx X. Xxxx,
Treasurer; if to the Issuer Trust, to it c/o First Hawaiian, Inc., First
Hawaiian Center, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxxxxx III, Administrative Trustee; and if to a holder, to the
address of such holder set forth in the security register or other records of
the Issuer Trust or the Company, as the case may be, or to such other address
as the Company, the Issuer Trust or any such holder may have furnished to the
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable
by the respective successors and assigns of the parties hereto. In the event
that any transferee of any holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a party hereto for all purposes and
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be conclusively
deemed to have agreed to be bound by and to perform, all of the applicable
terms and provisions of this Agreement.
(d) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any holder of Registrable Securities, any director, officer or partner of
such holder, any agent or underwriter or any director, officer or partner
thereof, or any controlling person of any of the foregoing, and shall survive
delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable
Securities by such holder and the consummation of an Exchange Offer.
(e) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Trust Agreement, the Guarantee and the
Indenture) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only
by a written instrument duly executed by the Company, the Issuer Trust and
the holders of at least a majority in aggregate principal or liquidation
amount of the Registrable Securities at the time outstanding. Each holder of
any Registrable Securities at the time or thereafter outstanding shall be
bound by any amendment or waiver effected pursuant to this Section 9(g),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
(h) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available for inspection and copying
on any business day by any holder of Registrable Securities for proper
purposes only (which shall include any purpose related to the rights of the
holders of Registrable Securities under the Securities, the Indenture and
this Agreement) at the offices of the Company at the address thereof set
forth in Section 9(b) above, at the office of the Property Trustee or at the
office of the Trustee under the Indenture.
(i) Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
Agreed to and accepted as of the date referred to above.
FIRST HAWAIIAN, INC.
By: /S/Xxxxxxx X. Xxxxxxxxx III
______________________________
Name: Xxxxxxx X. Xxxxxxxxx III
Title: Assistant Treasurer
FIRST HAWAIIAN CAPITAL I
By: /s/ Xxxxxxx X. Xxxxxxxxx III
______________________________
Name: Xxxxxxx X. Xxxxxxxxx III
Title: Administrative Trustee
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxx, Sachs & Co.
______________________________
(Xxxxxxx, Xxxxx & Co.)
