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Exhibit 4.8
TRANSAMERICA CAPITAL III
$190,000,000 7 5/8% CAPITAL TRUST PASS-THROUGH SECURITIES(R) (TRUPS(R))
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
TRANSAMERICA CORPORATION
REGISTRATION RIGHTS AGREEMENT
New York, New York
November 14, 1997
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Transamerica Capital III (the "Trust"), a statutory business
trust created under the laws of the state of Delaware by Transamerica
Corporation (the "Company"), proposes to issue and sell to the Initial
Purchasers (the "Initial Purchasers") named in the Purchase Agreement of even
date herewith (the "Purchase Agreement"), for whom you are acting as
representative (the "Representative"), the 7 5/8% Capital Trust Pass-through
Securities (the "Capital Securities") of the Trust. The issue and sale of the
Capital Securities pursuant to the Purchase Agreement is referred to herein as
the "Initial Placement." The Capital Securities, together with the guarantee of
the Company with respect thereto (the "Guarantee") and the 7 5/8% Junior
Subordinated Deferrable Interest Debentures due 2037 of the Company (the
"Subordinated Debt Securities"), are collectively referred to herein as the
"Registrable Securities." As an inducement to the Initial Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Initial Purchasers thereunder, the Company and the Trust
agree with you, (i) for your benefit and the benefit of the other Initial
Purchasers and (ii) for the benefit of the holders from time to time of the
Registrable Securities and the Exchange Securities (as defined below), including
the Initial Purchasers (each of the foregoing a "Holder" and together the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
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"Act" means the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Securities" has the meaning set forth in the preamble
hereto.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"DTC" means The Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Prospectus" means the Prospectus contained in the
Exchange Offer Registration Statement, as it may be amended or supplemented from
time to time.
"Exchange Offer Registration Period" means the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement or the Company
otherwise fails to maintain continuous effectiveness of the Exchange Offer
Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Company and the Trust on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" means the securities of the Company and the
Trust issued pursuant to a Registered Exchange Offer in the same aggregate
principal amount or in the same number or liquidation amount, as the case may
be, and containing terms that are identical in all material respects to the
terms of the Registrable Securities except (i) the Exchange Securities shall
have been registered for sale under the Act to Holders and (ii) the interest
rate step-up provisions and transfer restrictions under the Act in the
Registrable Securities shall have been eliminated in the Exchange Securities.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) which is a broker-dealer electing to exchange Registrable
Securities, acquired for its
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own account as a result of market-making activities or other trading
activities, for Exchange Securities.
"Final Offering Memorandum" means the Offering Memorandum issued
in connection with the Initial Placement and dated as of November 7, 1997
relating to the Registrable Securities (including any and all exhibits thereto
and any information incorporated by reference therein).
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchasers" has the meaning set forth in the preamble
hereto.
"Interest Payment Date" has the meaning set forth in Section 3(c)
hereof.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities or the Exchange
Securities, covered by such Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the offer to the Holders to
issue and deliver to such Holders, in exchange for the Registrable Securities, a
like principal amount, stated liquidation preference or number, as the case may
be, of the Exchange Securities.
"Registrable Securities" has the meaning set forth in the
preamble hereto.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Representative" has the meaning set forth in the preamble
hereto.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
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"Shelf Registration Event" has the meaning set forth in Section
2(g) hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company and the Trust pursuant to the provisions of Section 3
hereof which covers some or all of the Registrable Securities or Exchange
Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Special Payment" has the meaning set forth in Section 3(c)
hereof.
"Subordinated Debt Securities" has the meaning set forth in the
preamble hereto.
"Suspension Period" has the meaning set forth in Section 2(f)
hereof.
"Tax Event" has the meaning set forth in the Final Offering
Memorandum.
"Trust" has the meaning set forth in the preamble hereto.
"underwriter" means any underwriter of Registrable Securities or
Exchange Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by
Exchanging Dealers; Private Exchange. (a) Except as otherwise provided herein,
the Company and the Trust shall prepare and, not later than 150 days following
the Closing Date, shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Company and the
Trust shall use their best efforts to cause the Exchange Offer Registration
Statement to be declared effective under the Act within 180 days of the Closing
Date. The Company and the Trust shall use their best efforts to consummate the
Registered Exchange Offer within 225 days of the Closing Date.
(b) Promptly after the date the Exchange Offer Registration
Statement is declared effective, the Company and the Trust shall commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of the Act, acquires the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in a public distribution (within the meaning of the Act)
of the Exchange Securities) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Act (other than
as a result of a Holder being an Exchanging Dealer) and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States. The Registered 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
Registrable Securities pursuant to the Registered Exchange Offer and (ii) the
Company having exchanged pursuant to the Registered Exchange Offer, Exchange
Securities for
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all Registrable Securities that have been properly tendered and
not validly withdrawn before the expiration of the Registered Exchange Offer.
(c) In connection with the Registered Exchange Offer, the Company
and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 30 days (or longer if required by applicable law) after the
date notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all Registrable
Securities tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(ii) issue Exchange Securities to each Holder in a
principal amount or liquidation amount, as the case may be, equal
to the Registrable Securities accepted for exchange and canceled
pursuant to the Registered Exchange Offer; and
(iii) issue Exchange Securities to each Initial Purchaser
at its request in exchange for Registrable Securities acquired by
it as part of the Initial Placement having the status of an
unsold allotment in the initial distribution, containing terms
that are identical to the Exchange Securities issued to Holders
in the Registered Exchange Offer and use their best efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for
such Exchange Securities as is issued for the Exchange Securities
issued in the Registered Exchange Offer.
(e) The Company, the Trust and the Initial Purchasers on behalf
of the Holders hereby acknowledge that, in order to effect a Registered Exchange
Offer and to comply with clause (d)(iii) above, (i) the Company will be required
to issue new subordinated debt securities to the Trust in exchange for a like
principal amount of Subordinated Debt Securities and (ii) the Trust will be
required to issue new capital securities in exchange for a like liquidation
amount of Capital Securities. The parties hereto acknowledge that the Guarantee
by its express terms covers the Exchange Securities corresponding to the Capital
Securities as well as such Capital Securities. The parties hereto further
acknowledge that the new subordinated debt securities and capital securities
issuable as described in this paragraph, which collectively constitute the
Exchange Securities, shall be identical in all material respects to the
securities they replace,
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except that (x) such Exchange Securities issued pursuant to the Registered
Exchange Offer shall be registered for sale under the Act to Holders and (y) the
interest and distribution rate step-up provisions and transfer restrictions
under the Act in the securities being replaced by the Exchange Securities will
be eliminated in the Exchange Securities.
(f) The Initial Purchasers, the Company and the Trust acknowledge
that, pursuant to current interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer may be deemed an "underwriter" within the meaning of the
Act and, therefore, is required to deliver a Prospectus in connection with any
resales of any Exchange Securities received by such Exchanging Dealer pursuant
to the Registered Exchange Offer in exchange for Registrable Securities acquired
for its own account as a result of market-making activities or other trading
activities. Accordingly, the Company and the Trust shall:
(i) include the information substantially in the form set
forth in Annex A hereto on the cover of the Prospectus forming a
part of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Prospectus forming a part of the
Exchange Offer Registration Statement in a section setting forth
details of the Registered Exchange Offer, and in Annex C hereto
in the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration
Statement, and such other information with respect to resales of
the Exchange Securities by Exchanging Dealers that the Commission
may require in connection therewith and include the information
substantially in the form set forth in Annex D hereto in the
Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act
during the Exchange Offer Registration Period for delivery by
Exchanging Dealers in connection with sales of Exchange
Securities received pursuant to the Registered Exchange Offer, as
contemplated by Section 4(h) below; provided, however, that
during the Exchange Offer Registration Period, the Company or the
Trust may elect to suspend the right of the Initial Purchasers,
Exchanging Dealers or other Holders to utilize the Prospectus for
purposes of effecting resales of any Exchange Securities for no
more than a total of two periods, each of which shall not exceed
30 days (each a "Suspension Period"). The Company or the Trust
shall promptly notify the Initial Purchasers, Exchanging Dealers
or other Holders in writing of any such election. The exercise of
the right to effect a Suspension Period shall not be deemed to
extend the length of time of the Exchange Offer Registration
Period and shall not, for the purposes of this Agreement, be
deemed to constitute a suspension of the effectiveness of the
Exchange Offer Registration Statement.
(g) (i) In the event that the Company and the Trust
determine upon the advice of outside counsel that the applicable
law or applicable interpretations of the staff of the Commission
do not permit them to effect the Registered Exchange Offer, or
(ii) if (x) as a result of the consummation of the Registered
Exchange Offer, a Tax Event shall have occurred and in the
opinion of a nationally
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recognized independent tax counsel to the Company experienced in
such matters, as a result of the consummation of the Registered
Exchange Offer, there will be more than an insubstantial risk
that the Company would be precluded from deducting interest on
the Subordinated Debt Securities for United States federal income
tax purposes, even if the Subordinated Debt Securities were
distributed to the holders of Capital Securities in liquidation
of such holders' interests in the Trust, or (y) the Company shall
determine in good faith that there is a reasonable likelihood
that, or a material uncertainty exists as to whether,
consummation of the Registered Exchange Offer would result in a
material adverse tax consequence to the Company (each of the
events described in this clause (ii) a "Tax Contingency" and
together with the event described in clause (i) of this
paragraph, a "Shelf Registration Event"), the Company and the
Trust may elect, in lieu of the commencement of such Registered
Exchange Offer, to effect a Shelf Registration of the Registrable
Securities pursuant to Section 3 hereof.
3. Shelf Registration. (i) In the event of a Shelf Registration
Event, (ii) if for any other reason the Exchange Offer Registration Statement is
not declared effective by the Commission within 180 days of the Closing Date,
(iii) if any Initial Purchaser so requests with respect to Registrable
Securities acquired prior to the completion of the Registered Exchange Offer
that are held by it following consummation of the Registered Exchange Offer (or
Exchange Securities issued to the Initial Purchasers pursuant to Section
2(d)(iii) of this Agreement) and that are not "freely tradable" Exchange
Securities or (iv) if any Holder that is a broker-dealer, is not an affiliate of
the Company or the Trust and is not eligible to participate in the Registered
Exchange Offer so requests with respect to Registrable Securities held by it
following the consummation of the Registered Exchange Offer that are not "freely
tradable" Exchange Securities (it being understood that, for purposes of this
Section 3, (x) the requirement that an Initial Purchaser deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Act in connection with sales of Exchange Securities acquired in
exchange for such Registrable Securities shall result in such Exchange
Securities being not "freely tradable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Registered Exchange Offer in exchange for Registrable
Securities acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
tradable"), the following provisions shall apply:
(a) The Company and the Trust shall, as promptly as practicable,
file with the Commission the Shelf Registration Statement covering resales of
the Registrable Securities (except that in the case of clause (iii) or (iv) of
the preceding paragraph, such registration statement shall cover only the
securities referred to in such clauses, respectively) or the Exchange
Securities, as applicable, by the Holders from time to time in accordance with
the methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement, and use their best efforts to cause the Shelf
Registration Statement to be declared effective under the Act by the 225th day
(or, if a Tax Contingency exists on the 225th day following the Closing Date, by
the 280th day) after the Closing Date; provided that with respect to Exchange
Securities received by an Initial Purchaser in exchange for Registrable
Securities constituting any portion of an unsold allotment, the Company and the
Trust may, if permitted by current interpretations by the Commission's staff,
file a post-effective amendment to the Exchange Offer Registration
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Statement containing the information required by Regulation S-K Items 507 and/or
508, as applicable, in satisfaction of their obligations under this paragraph
(a) with respect thereto, and any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement; and provided further, that
with respect to a Shelf Registration Statement required pursuant to clause (iii)
of the preceding paragraph, the consummation of a Registered Exchange Offer
shall relieve the Company and the Trust of their obligations under this Section
3(a) but only in respect of their obligations under such clause (iii).
(b) The Company and the Trust shall each use its 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 of two
years from the date the Shelf Registration Statement is declared effective by
the Commission, or such shorter period that will terminate upon the earlier of
the following: (A) when all the Registrable Securities or Exchange Securities,
as applicable, covered by such Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement, (B) when all the Subordinated Debt
Securities or the Exchange Securities relating to such Subordinated Debt
Securities or the Exchange Securities relating to such Subordinated Debt
Securities issued to Holders in respect of Capital Securities or Exchange
Securities that had not been sold pursuant to the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or (C) when in the
written opinion of counsel to the Company and the Trust, all outstanding
Registrable Securities or Exchange Securities held by persons that are not
affiliates of the Company or the Trust may be resold without registration under
the Act pursuant to Rule 144(k) under the Act or any successor provision (in any
such case, such period being called the "Shelf Registration Period").
Furthermore, the Company and the Trust shall each use its best efforts, upon the
effectiveness of the Shelf Registration Statement, to promptly upon the request
of any Holder take any action reasonably necessary to register the sale of any
Registrable Securities or Exchange Securities held pursuant to Section 2(d)(iii)
hereof of such Holder and compliance by such Holder with the terms hereof and to
identify such Holder as a selling securityholder and identify any specified
method of distribution, provided that such Holder provides the Company with all
information reasonably necessary to effect such registration. 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 either the
Company or the Trust voluntarily takes any action that would result in Holders
of securities covered thereby not being able to offer and sell such securities
during that period, unless (i) such action is required by applicable law, or
(ii) such action is taken by the Company in good faith and for valid business
reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as the Company
promptly thereafter complies with the requirements of Section 4(k) hereof, if
applicable.
(c) Except as described below, in the event that either (a) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 150th day following the Closing Date, (b) the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th day
following the Closing Date or (c) the Registered Exchange Offer is not
consummated or a Shelf Registration Statement with respect to the Registrable
Securities is not declared effective by the Commission on or prior to the 225th
day following the Closing Date, then, as liquidated damages (which shall be the
sole remedy of the Holders for the failure to comply with clauses (a), (b) or
(c) of this Section 3(c)), interest will accrue (in addition to the
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stated interest on the Registrable Securities) from and including the next day
following each of (i) such 150-day period in the case of clause (a) above, (ii)
such 180-day period in the case of clause (b) above, and (iii) such 225-day
period in the case of clause (c) above. In each case such additional interest
(the "Special Payment") will be payable in cash semiannually in arrears on each
November 15 and May 15 of each year (each an "Interest Payment Date"), at a rate
per annum equal to 0.25% of the principal amount or liquidation amount, as
applicable, of the Registrable Securities. The aggregate amount of Special
Payments payable pursuant to the above provisions will in no event exceed 0.25%
per annum of the principal amount or the liquidation amount, as applicable, of
the Registrable Securities.
(d) If a Shelf Registration Event shall exist on or before the
150th day following the Closing Date, clauses (a) and (i) of the preceding
paragraph shall not apply. To the extent such a Shelf Registration Event exists
and the Company has filed a Shelf Registration Statement covering resales of the
Registrable Securities by the 180th day following the Closing Date, clauses (b)
and (ii) of the preceding paragraph shall not apply, and to the extent a Tax
Contingency exists on the 225th day following the Closing Date, the period
specified in clauses (c) and (iii) of the preceding paragraph will be 280 days.
Upon (x) the filing of the Exchange Offer Registration Statement or the
occurrence of a Shelf Registration Event, if applicable, as described above,
after the 150-day period described in clause (a) of the preceding paragraph, (y)
the effectiveness of the Exchange Offer Registration Statement (if applicable)
(or the filing of a Shelf Registration Statement in the event of a Shelf
Registration Event, if applicable, as described above) after the 180-day period
described in clause (b) of the preceding paragraph or (z) the consummation of
the Registered Exchange Offer or the effectiveness of a Shelf Registration
Statement after the 225-day period described in clause (c) of the preceding
paragraph (or the effectiveness of a Shelf Registration Statement after the 280
day period specified above, in the event of a Tax Contingency, if applicable, as
described above), the Special Payment payable on the Registrable Securities from
the date of such filing, effectiveness or consummation, as the case may be,
shall cease to accrue and all accrued and unpaid Special Payments as of the
occurrence of (x), (y) or (z) shall be paid to the holders of the Registrable
Securities on the next Interest Payment Date.
(e) In the event that a Shelf Registration Statement is declared
effective hereunder, if the Company or the Trust fails to fulfill its
obligations set forth in Section 3(b) to keep such Shelf Registration Statement
continuously effective for the period required hereby, then from the next day
following such time as the Shelf Registration Statement is no longer effective
until the earlier of (i) the date that the Shelf Registration Statement is again
deemed effective, (ii) the date that is the second anniversary of the date of
the original issuance of the Registrable Securities or (iii) the date as of
which all of the Registrable Securities covered by the Shelf Registration
Statement are sold pursuant thereto or may be sold without registration pursuant
to Rule 144(k) under the Securities Act, then, as liquidated damages (which
shall be the sole remedy of the Holders for the failure by the Company or the
Trust to fulfill its obligations set forth in Section 3(b) to keep such Shelf
Registration Statement continuously effective for the period required hereby),
Special Payments shall accrue at a rate per annum equal to 0.25% of the
principal amount or liquidation amount, as applicable, of the Registrable
Securities covered by the Shelf Registration Statement and shall be payable in
cash, semiannually in arrears on each Interest Payment Date.
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(f) The Company and the Trust may require each Holder of
Registrable Securities as to which any registration pursuant to Section 3(b) is
being effected to furnish to the Company such information regarding such Holder
and such Holder's intended method of distribution of such Registrable Securities
as the Company and the Trust may from time to time reasonably request in
writing, but only to the extent that such information is required in order to
comply with the Act. Each such Holder agrees to notify the Company and the Trust
as promptly as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company and the Trust or of the occurrence of
any event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of disposition of such
Registrable Securities or omits to state any material fact regarding such Holder
or such Holder's intended method of disposition of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company and the Trust any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company and the Trust shall furnish to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use their best
efforts to reflect in each such document, when so filed with the Commission,
such comments as such Initial Purchasers reasonably may propose.
(b) The Company and the Trust shall ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto (and each document incorporated
therein by reference) complies in all material respects with the Act and the
Exchange Act and the respective rules and regulations thereunder, (ii) any
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 Registration
Statement, and any amendment or supplement to such Prospectus, does not as of
the date thereof include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) (1) The Company and the Trust shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, if requested by the Initial Purchasers or any
such Holder, confirm such advice in writing:
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(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; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company and the Trust shall advise the Initial Purchasers
and, in the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of an Exchange Offer Registration Statement,
any Exchanging Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the Initial
Purchasers or any such Holder or Exchanging Dealer, confirm such advice in
writing of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) the receipt by the Company or the Trust of any
notification with respect to the suspension of the qualification
of the securities included therein for sale in any jurisdiction
or the initiation or overtly threatening of any proceeding for
such purpose;
(iii) the happening of any event that requires the making
of any changes in the Registration Statement or the Prospectus 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 (in the case
of the Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied by
an instruction to suspend the use of the Prospectus until the
requisite changes have been made);
(iv) the Company's or the Trust's determination that a
post-effective amendment to a Registration Statement would be
appropriate; and
(v) the Company's election to effect any Suspension
Period.
(d) The Company and the Trust shall use their best efforts to
prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Registration Statement at the earliest
practicable time.
(e) The Company and the Trust shall, upon request, 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 filed therewith (including those incorporated by reference).
(f) The Company and the Trust shall during the Shelf Registration
Period, deliver to each Holder of securities included within the coverage of any
Shelf Registration Statement,
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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 in connection with
resales of Registrable or Exchange Securities; and the Company and the Trust
each 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.
(g) The Company and the Trust shall furnish to each Exchanging
Dealer that 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, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
filed therewith (including those incorporated by reference).
(h) The Company and the Trust shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without charge,
as many copies of the final Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer; and the Company and the Trust each consent to the use
of the Prospectus or any amendment or supplement thereto by any such Exchanging
Dealer, as aforesaid.
(i) Prior to the Registered Exchange Offer or any other offering
of securities pursuant to any Registration Statement, the Company and the Trust
shall 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 Holders reasonably request 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 covered by such
Registration Statement; provided, however, that in no event shall the Company or
the Trust be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it is
not then so subject.
(j) The Company and the Trust shall cooperate with the Holders of
Registrable Securities or Exchange Securities, as the case may be, to facilitate
the timely preparation and delivery within the times required by normal-way
settlement of certificates representing securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such authorized
denominations and registered in such names as Holders may request prior to sales
of securities pursuant to such Registration Statement; provided that, so long as
certificates are held in book-entry form by DTC or a successor depositary, the
Company will not be required to deliver physical certificates except in
accordance with the rules and procedures of DTC or a successor depositary.
(k) If (a) a Shelf Registration is filed pursuant to Section 3
hereof, or (b) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Act by any Exchanging Dealer who seeks to sell
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Registrable Securities or Exchange Securities during the Shelf Registration
Period or the Exchange Offer Registration Period, as the case may be, upon the
occurrence of any event contemplated by paragraph 4(c)(2)(iii), 4(c)(2)(iv) or
4(c)(2)(v) hereof, the Company and the Trust as promptly as practicable,
consistent with the advice of outside counsel to the Company regarding other
legal obligations relating to such filing, prepare and file with the Commission,
at the sole expense of the Company, a supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered by an Exchanging
Dealer, any such Prospectus 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, in light of the circumstances under which they
were made, not misleading. Notwithstanding any contrary provisions hereof,
during the Exchange Offer Registration Period the Company or the Trust may elect
to effect a Suspension Period. The Company or the Trust shall promptly notify
the Initial Purchasers, Exchanging Dealers or other Holders in writing of any
such election. The exercise of the right to effect a Suspension Period shall not
be deemed to extend the length of time of the Exchange Offer Registration Period
and shall not, for the purposes of this Agreement, be deemed to constitute a
suspension of the effectiveness of the Exchange Offer Registration Statement.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company and the Trust shall provide a CUSIP number for
the Capital Securities or the Exchange Securities corresponding to the Capital
Securities, as the case may be, registered under such Registration Statement. In
the event of and at the time of any distribution of the Subordinated Debt
Securities to Holders, the Company and the Trust shall provide a CUSIP number
for the Subordinated Debt Securities or the Exchange Securities corresponding to
the Subordinated Debt Securities and provide the applicable trustee with
certificates for such securities, in a form eligible for deposit with DTC. The
Company and the Trust shall use their reasonable best efforts to cause the CUSIP
Service Bureau to issue the same CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, delivered pursuant to a Registration
Statement as was originally issued for the Registrable Securities.
(m) The Company and the Trust shall use their best efforts to
comply with all applicable rules and regulations of the Commission to the extent
and so long as they are applicable to the Registered Exchange Offer, the
Exchange Offer Registration Statement or the Shelf Registration Statement and
shall make generally available to their security holders as soon as practicable
after the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act (including, at
the option of the Company, Rule 158 thereunder).
(n) The Company and the Trust shall cause the indenture relating
to the Subordinated Debt Securities, the Guarantee and the declaration of trust
of the Trust pursuant to which the terms of the Capital Securities are
established, or any corresponding documents in respect of the Exchange
Securities, as the case may be, to be qualified under the Trust Indenture Act in
a timely manner.
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(o) The Company and the Trust shall, if requested, promptly
incorporate in a Prospectus supplement or post effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters reasonably
agree with the Company should be included therein and shall make all required
filings of such Prospectus supplement or post effective amendment as soon as
reasonably practicable after they are notified of the matters to be incorporated
in such Prospectus supplement or post effective amendment.
(p) In the case of any Shelf Registration Statement, the Company
and the Trust shall enter into such customary agreements (including an
underwriting agreement) and take all other appropriate actions, if any, in order
to facilitate the registration or the disposition of the Registrable Securities
or the Exchange Securities, as the case may be, to be registered thereunder.
(q) In connection therewith, if an underwriting agreement is
entered into, the Company and the Trust shall cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 6 (or such other provisions and procedures acceptable to the Managing
Underwriters, if any), with respect to all parties to be indemnified pursuant to
Section 6.
(r) In the case of any underwritten offering under a Shelf
Registration Statement or at the request of an Initial Purchaser to the extent
that an Initial Purchaser has Registrable Securities or Exchange Securities
eligible for resale thereunder, the Company and the Trust shall (i) make
reasonably available for inspection by a representative of the Holders of a
majority of the securities to be registered thereunder, any Initial Purchaser
(if applicable) and any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney, accountant or other agent
retained by any such Holders, Initial Purchaser or underwriter such relevant
financial and other records, pertinent corporate documents and properties of the
Company, its subsidiaries and the Trust as shall be necessary to conduct a
reasonable investigation within the meaning of Section 11 of the Act; (ii) cause
the Company's officers, directors and employees and the trustees of the Trust to
supply all relevant information reasonably requested by the representative of
the Holders, the Initial Purchaser (if applicable) or any such underwriter,
attorney, accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; provided, however, that
any information that is designated in writing by the Company and the Trust, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders (and their representative), the Initial
Purchaser (if applicable) or any such underwriter, attorney, accountant or
agent, unless such disclosure is required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality; (iii) make such representations and
warranties to the Holders of securities registered thereunder, the Initial
Purchaser (if applicable) and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary underwritten
offerings and covering matters including , but not limited to, those set forth
in the Purchase Agreement; (iv) obtain opinions of counsel to the Company and
the Trust (who may be the general counsel of the Company) and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) in customary form and scope
addressed to the representative of the Holders of a majority of the securities
to be registered thereunder, each Initial Purchaser (if applicable) and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten
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offerings and such other matters as may be reasonably requested by such Holders,
Initial Purchasers (if applicable) and underwriters; (v) obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and if necessary, any other independent certified accountants of
any subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the representative of the
Holders of a majority of the securities to be registered thereunder, each
Initial Purchaser (if applicable) and the underwriters, if any, and covering
matters of the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings; and (vi) deliver such customary documents
and certificates as may be reasonably requested by any such Holders, the Initial
Purchaser (if applicable) or the Managing Underwriters, if any, including those
to evidence compliance with Section 4(k) and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company and the Trust. The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 4(r) shall be performed at (A) the effectiveness of
such Registration Statement and each post effective amendment thereto and (B)
each closing under any underwriting or similar agreement as and to the extent
required thereunder.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm of
counsel designated by the majority of the Holders of the Registrable Securities
or Exchange Securities, as the case may be, covered by such Shelf Registration
Statement to act as counsel for the Holders in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless the
Trust, each Holder of securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 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 any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (including all documents
incorporated by referenced therein) as originally filed or in any amendment
thereof, or in any preliminary prospectus or Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of circumstances under which they were made,
not misleading, and agrees to reimburse each such indemnified party, as
incurred, 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 will not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on
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behalf of any such Holder specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
The Company also agrees to indemnify or contribute to Losses (as
defined herein) of, as provided in Section 6(d), any underwriters of Securities
registered under a Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Initial Purchasers and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement, as provided in Section 4(q)
hereof.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant hereto, that
the Company shall have received an undertaking reasonably satisfactory to it
from each Holder of securities covered by a Registration Statement (including
each Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer) and from each
underwriter named in any underwriting agreement entered into pursuant to Section
4(p) to severally and not jointly indemnify and hold harmless the Company, the
Trust, each of their directors, trustees, administrators, officers and each
person who controls the Company or the Trust within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each such person, but only with reference to written information
relating to such person furnished to the Company by or on behalf of such person
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 or 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 this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent the indemnifying party did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
one such separate counsel (in addition to local counsel) designated by the
indemnified parties if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the
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indemnifying party and the indemnified party shall have reasonably concluded,
based upon written advice of counsel, 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, (iii) 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 the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or out of the portion of
such claim, action, suit or proceeding which is the subject of the settlement,
compromise or consent.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Registrable
Security or Exchange Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such security, or
in the case of an Exchange Security, applicable to the Registrable Security
which was exchangeable into such Exchange Security, as set forth on the cover
page of the Final Offering Memorandum, nor shall any underwriter be responsible
for any amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set forth on
the cover page of the Final Offering Memorandum and (y) the total amount of
additional interest which the Company is not required to pay as a result of
registering the securities covered by the Registration Statement which resulted
in such Losses. Benefits received by the Initial Purchasers shall be deemed to
be equal to the total purchase discounts and commissions as set forth on the
cover page of the Final Offering Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Registrable
Securities or Exchange Securities, as applicable, registered under the Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and
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commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
person who controls the Company and the Trust within the meaning of either the
Act or the Exchange Act, each officer of the Company or trustee of the Trust who
shall have signed the Registration Statement and each director of the Company or
trustee of the Trust shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
(e) An indemnifying party shall not be liable under this Section
6 to any indemnified party regarding any settlement or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(f) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Company or the Trust any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Trust have
not, as of the date hereof, entered into, nor shall they, on or after the date
hereof, enter into, any agreement with respect to their securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
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 the Holders of at least a majority in
liquidation amount of the Capital Securities then outstanding (or, after the
consummation of any Registered Exchange Offer in accordance with Section 2
hereof, of Exchange Securities then outstanding); provided that, with respect to
any matter that directly or indirectly affects the rights of any Initial
Purchaser hereunder, the Company shall obtain the written consent of each such
Initial Purchaser against which such amendment, qualification, supplement,
waiver or consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or
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consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose 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 the majority of such affected
Holders, determined on the basis of securities being sold rather than registered
under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by
such Holder to the Company;
(ii) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at their
addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given when received. The Initial Purchasers, the Company or the Trust by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company and the Trust thereto, subsequent Holders of Registrable Securities
and/or Exchange Securities. The Company and the Trust hereby agree to extend the
benefits of this Agreement to any Holder of Registrable Securities and/or
Exchange Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected
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thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified number, or percentage of principal amount or
liquidation amount, as the case may be, of, Registrable Securities or Exchange
Securities is required hereunder, Registrable Securities or Exchange Securities,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Registrable Securities or Exchange Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Registrable Securities or Exchange Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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Please confirm your agreement by having your authorized officer
sign a copy of this Registration Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
TRANSAMERICA CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
TRANSAMERICA CAPITAL III
By: TRANSAMERICA CORPORATION.,
as Sponsor
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Senior Assistant Treasurer
Accepted:
SALOMON BROTHERS INC
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Director
Date: November 14, 1997
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Exhibit 4.8
ANNEX A
Based on interpretations by the staff of the Securities and
Exchange Commission (the "Commission"), as set forth in no-action letters issued
to third parties, the Company and the Trust believe that the Exchange Securities
issued pursuant to the Registered Exchange Offer may be offered for resale,
resold or otherwise transferred by holders thereof (other than any holder that
is an "affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act), provided that such Exchange Securities are acquired in the
ordinary course of such holders' business and such holders are not engaged in,
and do not intend to engage in, a distribution of such Exchange Securities and
have no arrangement or understanding with any person to participate in the
distribution of such Exchange Securities. However, the staff of the Commission
has not considered the Registered Exchange Offer in the context of a no-action
letter, and there can be no assurance that the staff of the Commission would
make a similar determination with respect to the Registered Exchange Offer as in
such other circumstances. By tendering the Registrable Securities in exchange
for Exchange Securities, each holder, other than a broker-dealer, will represent
to the Company and the Trust that: (i) it is not an affiliate of the Company or
the Trust (as defined under Rule 405 of the Securities Act); (ii) any Exchange
Securities to be received by it were acquired in the course of its ordinary
business; and (iii) it is not engaged in, and does not intend to engage in, a
distribution of the Exchange Securities and has no arrangement or understanding
to participate in a distribution of the Exchange Securities.
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered 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
Registrable Securities where such Registrable Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company and the Trust have agreed that, starting on the date on
which the Registered Exchange Offer is consummated and ending on the close of
business 180 days after such date, they will make this Prospectus available to
any broker-dealer for use in connection with any such resale.
See "Plan of Distribution."
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ANNEX B
Based on interpretations by the staff of the Commission as set
forth in no-action letters issued to third parties, the Company and the Trust
believe that holders of Registrable Securities (other than any holder that is an
"affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act) who exchange their Registrable Securities for Exchange
Securities pursuant to the Registered Exchange Offer may offer such Exchange
Securities for resale, resell such Exchange Securities and otherwise transfer
such Exchange Securities without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such Exchange
Securities are acquired in the ordinary course of such holders' business and
such holders are not engaged in, and do not intend to engage in, a distribution
of such Exchange Securities and have no arrangement or understanding with any
person to participate in the distribution of such Exchange Securities. However,
the staff of the Commission has not considered the Registered Exchange Offer in
the context of a no-action letter, and there can be no assurance that the staff
of the Commission would make a similar determination with respect to the
Registered Exchange Offer. Each broker-dealer that receives Exchange Securities
for its own account in exchange for Registrable Securities, where such
Registrable 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."
24
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered 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 Registrable Securities where such Registrable
Securities were acquired as a result of market-making activities or other
trading activities. The Company and the Trust have agreed that, starting on the
date on which the Registered Exchange Offer is consummated and ending on the
close of business 180 days after such date, they 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 and the Trust 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 Registered 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 and/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 Registered 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 commissions 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 date on which the Registered
Exchange Offer is consummated, the Company and the Trust will promptly send
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal, subject to the Company's election to exercise its right to effect
any Suspension Period. The Company and the Trust have agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Registrable Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the Holders of the
Registrable Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items
507 and/or 508.]
25
ANNEX D
Rider A
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: ___________________________________
___________________________________
Rider B
The undersigned acknowledges that this Registered Exchange Offer
is being made by the Company and the Trust based upon the Company's and Trust's
understanding of an interpretation by the staff of the Securities and Exchange
Commission (the "Commission") as set forth in no-action letters issued to third
parties, that the Exchange Securities issued in exchange for Registrable
Securities by holders thereof (other than to holders that are "affiliates" of
the Company or the Trust within the meaning of Rule 405 under the Securities
Act), may be so issued without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that: (i) such holders are
not affiliates of the Company or the Trust within the meaning of Rule 405 under
the Securities Act; (ii) such Exchange Securities are acquired in the ordinary
course of such holders' business; and (iii) such holders are not engaged in, and
do not intend to engage in, a distribution of such Exchange Securities and have
no arrangement or understanding with any person to participate in the
distribution of such Exchange Securities. However, the staff of the Commission
has not considered the Registered Exchange Offer in the context of a no-action
letter and there can be no assurance that the staff of the Commission would make
a similar determination with respect to the Registered Exchange Offer as in
other circumstances. If a holder of Registrable Securities is an affiliate of
the Company, or is engaged in or intends to engage in a distribution of the
Exchange Securities or has any arrangement or understanding with respect to the
distribution of the Exchange Securities to be acquired pursuant to the
Registered Exchange Offer, such holder could not rely on the applicable
interpretations of the staff of the Commission and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction. If the undersigned is a
broker-dealer that will receive Exchange Securities for its own account in
exchange for Registrable Securities, it represents that the Registrable
Securities to be exchanged for Exchange Securities were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Securities; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
