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EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
Dated April 17, 1998
among
PROVIDENT BANKSHARES CORPORATION
PROVIDENT TRUST I
and
XXXXX, XXXXXXXX & XXXXX, INC.
as Initial Purchaser
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of April 17, 1998, among PROVIDENT BANKSHARES CORPORATION a
registered bank holding company organized under the laws of the State of
Maryland (the "Company"), PROVIDENT TRUST I, a statutory business trust created
under the laws of the state of Delaware (the "Issuer Trust"), and XXXXX,
XXXXXXXX & XXXXX, INC. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated
April 14, 1998 (the "Purchase Agreement"), among the Company, as issuer of the
8.29% Junior Subordinated Deferrable Interest Debentures due April 15, 2028 (the
"Junior Subordinated Debentures"), the Issuer Trust and the Initial Purchaser,
which provides for among other things, the sale by the Issuer Trust to the
Initial Purchaser of 40,000 of the Issuer Trust's 8.29% Capital Securities,
liquidation amount $1,000 per Capital Security (the "Capital Securities"), the
proceeds of which will be used by the Issuer Trust to purchase the Junior
Subordinated Debentures. The Capital Securities, together with the Junior
Subordinated Debentures and the Company's guarantee of the Capital Securities
(the "Guarantee") are collectively referred to as the "Securities." In order to
induce the Initial Purchaser to enter into the Purchase Agreement, the Company
and the Issuer Trust have agreed to provide to the Initial Purchaser and its
direct and indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
"Business Day" shall mean a day that is not a Saturday, a Sunday, or
a day on which banking institutions in New York, New York or in Baltimore,
Maryland are authorized or required to be closed.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
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"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Issuer Trust; provided, however, that such
depositary must have an address in the Borough of Manhattan, in The City of New
York.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Offer" shall mean the offer by the Company and the Issuer
Trust to the Holders to exchange all of the Registrable Securities (other than
Private Exchange Securities) for a like principal amount of Exchange Securities
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Securities" shall mean (i) with respect to the Junior
Subordinated Debentures, the 8.29% New Junior Subordinated Deferrable Interest
Debentures due April 15, 2028 (the "New Junior Subordinated Debentures")
containing terms substantially identical to the Junior Subordinated Debentures
(except that they will not contain terms with respect to the transfer
restrictions under the Securities Act and will not provide for any liquidated
damages thereon), (ii) with respect to the Capital Securities, the Issuer
Trust's 8.29% New Capital Securities, liquidation amount $1,000 per Capital
Security (the "New Capital Securities") which will have terms substantially
identical to the Capital Securities (except that they will not contain terms
with respect to transfer restrictions under the Securities Act (other than
required minimum transfers thereof to be in blocks of $100,000 liquidation
amount) and will not provide for any increase in the distribution rate thereon)
and (iii) with respect to the Guarantee, the Company's guarantee (the "New
Guarantee") of the New Capital Securities which will have terms substantially
identical to the Guarantee.
"Holder" shall mean the Initial Purchaser, for so long as it owns
any Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture or the Trust Agreement.
"Indenture" shall mean the Junior Subordinated Indenture dated as of
April 17, 1998 relating to the Junior Subordinated Debentures and the New Junior
Subordinated Debentures among the Company, as issuer, and Bankers Trust Company,
as trustee, as the same may be amended from time to time in accordance with the
terms thereof.
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"Initial Purchaser" shall have the meaning set forth in the preamble
to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n)
hereof.
"Issue Date" shall mean the date of original issuance of the
Securities.
"Liquidated Damages" shall have the meaning set forth in Section
2(e) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Securities and, if issued,
the Private Exchange Securities; provided, however, that Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities or
Private Exchange Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
exchanged or disposed of pursuant to such Registration Statement, (ii) such
Securities or Private Exchange Securities, as the case may be, shall have been
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the Securities Act, or (iii) such Securities or
Private Exchange Securities, as the case may be, shall have ceased to be
outstanding or (iv) with respect to the Securities, such Securities shall have
been exchanged for Exchange Securities upon consummation of the Exchange Offer
and are thereafter freely tradeable by the holder thereof (other than an
affiliate of the Company).
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"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all Commission or National Association of Securities
Dealers, Inc. (the "NASD") registration and filing fees, including, if
applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any Holder of Registrable
Securities in accordance with the rules and regulations of the NASD, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of a counsel for
any underwriters or Holders as a group in connection with blue sky qualification
of any of the Exchange Securities or Registrable Securities) and compliance with
the rules of the NASD, (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing the
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) the fees and disbursements of counsel for the Company
and of the independent certified public accountants of the Company, including
the expenses of any "cold comfort" letters required by or incident to such
performance and compliance, (vi) the fees and expenses of the Trustee, and any
exchange agent or custodian, (vii) all fees and expenses incurred in connection
with the listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, and (viii) the reasonable fees and expenses of any
special experts retained by the Company in connection with the Registration
Statement.
"Registration Statement" shall mean any registration statement of
the Company and the Issuer Trust which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any 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.
"Rule 144(k) Period" shall mean the period of two years (or such
other period as may hereafter be referred to in Rule 144(k) under the Securities
Act (or similar successor rule)) commencing on the Issue Date.
"Securities" shall have the meaning set forth in the preamble to
this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf registration"
statement of the Company and the Issuer Trust pursuant to the provisions of
Section 2(b) hereof which covers all of the Registrable Securities or all of the
Private Exchange Securities, as the case may be, on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted
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by the Commission, and 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.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of April 17, 1998, by the trustees named therein and the
Company as depositor.
"Trustees" shall mean any and all trustees with respect to (i) the
Capital Securities under the Trust Agreement, (ii) the Junior Subordinated
Debentures under the Indenture and (iii) the Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by
any applicable law or applicable interpretation of the staff of the Commission,
the Company and the Issuer Trust shall, for the benefit of the Holders, at the
Company's cost, use their respective best efforts to (i) cause to be filed with
the Commission within 150 days after the Issue Date an Exchange Offer
Registration Statement on an appropriate form under the Securities Act covering
the Exchange Offer, (ii) cause such Exchange Offer Registration Statement to be
declared effective under the Securities Act by the Commission not later than the
date which is 180 days after the Issue Date, and (iii) keep such Exchange Offer
Registration Statement effective for not less than 30 Business Days (or longer
if required by applicable law) after the date notice of the Exchange Offer is
mailed to the Holders. Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Issuer Trust shall promptly commence the Exchange
Offer and use their respective best efforts to enable each Holder eligible and
electing to exchange Registrable Securities for a like principal amount of New
Junior Subordinated Debentures or a like liquidation amount of New Capital
Securities, together with the New Guarantee, as applicable (assuming that such
Holder is not an affiliate of the Company within the meaning of Rule 405 under
the Securities Act and is not a broker-dealer tendering Registrable Securities
acquired directly from the Company for its own account, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws.
In connection with the Exchange Offer, the Company and
the Issuer 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;
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(ii) keep the Exchange Offer open for
acceptance for a period of not less than 30 days after the date
notice thereof is mailed to the Holders (or longer if required by
applicable law) (such period referred to herein as the "Exchange
Period");
(iii) utilize the services of the Depositary
for the Exchange Offer;
(iv) permit Holders to withdraw tendered
Securities at any time prior to the close of business, New York
City time, on the last Business Day of the Exchange Period, by
sending to the institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Securities delivered for
exchange, and a statement that such Holder is withdrawing his
election to have such Securities exchanged;
(v) notify each Holder that any Security not
tendered by such Holder in the Exchange Offer will remain
outstanding and continue to accrue interest or accumulate
distributions, as the case may be, but will not retain any rights
under this Agreement (except in the case of the Initial Purchaser
and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with
all applicable laws relating to the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside
counsel that it is not eligible to participate in the Exchange Offer with
respect to the exchange of Securities constituting any portion of an unsold
allotment in the initial distribution, as soon as practicable upon receipt by
the Company and the Issuer Trust of a written request from such Initial
Purchaser, the Company and the Issuer Trust, as applicable, shall issue and
deliver to such Initial Purchaser in exchange (the "Private Exchange") for the
Securities held by such Initial Purchaser, a like liquidation amount of New
Capital Securities of the Issuer Trust, together with the New Guarantee, or a
like principal amount of the Junior Subordinated Debentures of the Company, as
applicable, that are identical (except that such securities may bear a customary
legend with respect to restrictions on transfer pursuant to the Securities Act)
to the Exchange Securities (the "Private Exchange Securities") and which are
issued pursuant to the Indenture, the Trust Agreement or the Guarantee (which
provides that the Exchange Securities will not be subject to the transfer
restrictions set forth in the Indenture or the Trust Agreement, as applicable
(other than to require minimum transfers thereof to be in blocks of $100,000
principal amount or liquidation amount, as the case may be), and that the
Exchange Securities, the Private Exchange Securities and the Securities will
vote and consent together on all matters as one class and that neither the
Exchange Securities, the Private Exchange Securities nor the Securities will
have the right to vote or consent as a separate class on any matter). The
Private Exchange Securities shall be of the same series as the Exchange
Securities and the Company and the Issuer Trust will seek to cause the CUSIP
Service Bureau to issue the same CUSIP Numbers for the Private Exchange
Securities as for the Exchange Securities issued pursuant to the Exchange Offer.
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As soon as practicable after the close of the Exchange Offer and, if
applicable, the Private Exchange, the Company and the Issuer Trust, as the case
requires, shall:
(i) accept for exchange all Securities or
portions thereof tendered and not validly withdrawn pursuant to the
Exchange Offer or the Private Exchange;
(ii) deliver, or cause to be delivered, to the
applicable Trustee for cancellation all Securities or portions
thereof so accepted for exchange by the Company; and
(iii) issue, and cause the applicable Trustee
under the Indenture, the Trust Agreement or the Guarantee, as
applicable, to promptly authenticate and deliver to each Holder,
new Exchange Securities or Private Exchange Securities, as
applicable, equal in principal amount to the principal amount of
the Junior Subordinated Debentures or equal in liquidation amount
to the liquidation amount of the Capital Securities (together with
the guarantee thereof) as are surrendered by such Holder.
Distributions on each New Capital Security and interest on each New
Junior Subordinated Debenture issued pursuant to the Registered Exchange Offer
and Distributions or interest, as the case may be, on each Private Exchange
Security issued in the Private Exchange will accrue from the last date on which
a Distribution or interest was paid on the Capital Security or the Junior
Subordinated Debenture surrendered in exchange therefor or, if no Distribution
or interest has been paid on such Capital Security or Junior Subordinated
Debenture, from the Issue Date. To the extent not prohibited by any law or
applicable interpretation of the staff of the Commission, the Company and the
Issuer Trust shall use their best efforts to complete the Exchange Offer as
provided above, and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in connection with
the Exchange Offer. The Exchange Offer shall not be subject to any conditions,
other than that the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the Commission. Each Holder of
Registrable Securities who wishes to exchange such Registrable Securities for
Exchange Securities in the Exchange Offer will be required to make certain
customary representations in connection therewith, including, in the case of any
Holder of Capital Securities, representations that (i) it is not an affiliate of
the Issuer Trust or the Company, (ii) the Exchange Securities to be received by
it were acquired in the ordinary course of its business and (iii) at the time of
the Exchange Offer, it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the New Capital
Securities. The Company and the Issuer Trust shall inform the Initial Purchaser,
after consultation with the Trustee, of the names and addresses of the Holders
to whom the Exchange Offer is made, and the Initial Purchaser shall have the
right to contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company and the Issuer Trust shall have no further
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obligation to register the Registrable Securities (other than Private Exchange
Securities) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that: (i) the
Company, the Issuer Trust or the Majority Holders reasonably determine, after
conferring with counsel, that the Exchange Offer Registration provided in
Section 2(a) above is not available because of any change in law or in currently
prevailing interpretations of the staff of the Commission; (ii) the Company has
received an opinion of counsel, rendered by a law firm, experienced in such
matters, 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 New Junior Subordinated
Debentures, (y) interest payable by the Company on such Junior Subordinated
Debentures or New Junior Subordinated 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; (iii) the Exchange Offer
Registration Statement is not declared effective within 180 days of the Issue
Date; or (iv) upon notice from any Holder on or before the 20th Business Day
following the consummation of the Exchange Offer that (A) it is prohibited by
law or Commission policy from participating in the Exchange Offer, (B) it may
not resell the New Capital Securities, the New Guarantee and the New Junior
Subordinated Debentures acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales or (C) it is a broker-dealer and owns Capital Securities acquired
directly from the Issuer Trust or an affiliate of the Issuer Trust, (any of the
events specified in clauses (i) through (iv) being a "Shelf Registration Event"
and the date of occurrence thereof, the "Shelf Registration Event Date"), the
Company and the Issuer Trust shall, at their cost, use their respective best
efforts to cause to be filed as promptly as practicable after such Shelf
Registration Event Date, as the case may be, and, in event, within 45 days after
such Shelf Registration Event Date (which shall be no earlier than 75 days after
the Closing Time), a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities, and shall use their respective
best efforts to have such Shelf Registration Statement declared effective by the
Commission as soon as practicable. No Holder of Registrable Securities shall be
entitled to include any of its Registrable Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder and
furnishes to the Company and the Issuer Trust in writing, within 15 days after
receipt of a request therefor, such information as the Company and the Issuer
Trust may, after conferring with counsel with regard to information relating to
Holders that would be required by the Commission to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably request for
inclusion in the Shelf Registration Statement or Prospectus included therein.
Each Holder as to which any Shelf Registration is being effected agrees to
furnish to the Company and the Issuer Trust all information with respect to such
Holder necessary to make the information previously furnished to the Company by
such Holder not materially misleading.
The Company and the Issuer Trust agree to use their respective best
efforts to keep the Shelf Registration Statement continuously effective for the
Rule 144(k) Period (subject to
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extension pursuant to the last paragraph of Section 3 hereof) or for such
shorter period which will terminate when all of the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding (the "Effectiveness Period").
The Company and the Issuer Trust shall not permit any securities other than
Registrable Securities to be included in the Shelf Registration. The Company and
the Issuer Trust will, in the event a Shelf Registration Statement is declared
effective, provide to each Holder a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration has become effective and use their respective
best efforts to take certain other actions as are required to permit certain
unrestricted resales of the Registrable Securities. The Company and the Issuer
Trust further agree, if necessary, to supplement or amend the Shelf Registration
Statement, if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement
or by the Securities Act or by any other rules and regulations thereunder for
shelf registrations, and the Company and the Issuer Trust agree to furnish to
the Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the Commission.
(c) Expenses. The Company, as issuer of the Junior
Subordinated Debentures, shall pay all Registration Expenses in connection with
any Registration Statement pursuant to Section 2(a) or 2(b) hereof and will
reimburse the Initial Purchaser for the reasonable fees and disbursements of
Xxxxxx & Bird LLP, counsel for the Initial Purchaser, incurred in connection
with the Exchange Offer and, if applicable, the Private Exchange, and either
Xxxxxx & Bird LLP or any one other counsel designated in writing by the Majority
Holders to act as counsel for the Holders of the Registrable Securities in
connection with a Shelf Registration Statement, which other counsel shall be
reasonably satisfactory to the Company. Except as provided herein, each Holder
shall pay all expenses of its counsel, underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange
Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) will not be deemed to have
become effective unless it has been declared effective by the Commission;
provided, however, that if, after it has been declared effective, the offering
of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the Commission or any other governmental agency or court, such Registration
Statement will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. The Company and the Issuer Trust will
be deemed not to have used their best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if either of them
voluntarily takes any action that would result in such any Registration
Statement not being declared effective or in the Holders of Registrable
Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless such action is required by
applicable law.
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(e) Additional Interest. In the event that:
(i) (A) neither the Exchange Offer
Registration Statement nor a Shelf Registration
Statement is filed with the Commission on or prior to
the 150th day after the Issue Date or (B)
notwithstanding that the Company and the Issuer Trust
have consummated or will consummate an Exchange Offer,
if pursuant to a Shelf Registration Event the Company
and the Issuer Trust are required to file a Shelf
Registration Statement and such Shelf Registration
Statement is not filed on or prior to the date required
by Section 2(b) hereof, then commencing on the day after
the applicable required filing date, liquidated damages
shall accrue on the principal amount of the Junior
Subordinated Debentures and, if the Exchange Offer has
been consummated, the New Junior Subordinated
Debentures, and additional Distributions shall
accumulate on the liquidation amount of the Capital
Securities and, if the Exchange Offer has been
consummated, the New Capital Securities, each at a rate
of 0.25% per annum; or
(ii) (A) neither the Exchange Offer
Registration Statement nor a Shelf Registration
Statement is declared effective by the Commission on or
prior to the 180th day after the Issue Date or (B)
notwithstanding that the Company and the Issuer Trust
have consummated or will consummate an Exchange Offer,
if pursuant to a Shelf Registration Event the Company
and the Issuer Trust are required to file a Shelf
Registration Statement and such Shelf Registration
Statement is not declared effective by the Commission on
or prior to the 30th day after the date such Shelf
Registration Statement was required to be filed, then,
commencing on the 31st day after the required filing
date, liquidated damages shall accrue on the principal
amount of the Junior Subordinated Debentures and, if the
Exchange Offer has been consummated, the New Junior
Subordinated Debentures, and additional Distributions
shall accumulate on the liquidation amount of the
Capital Securities and, if the Exchange Offer has been
consummated, the New Capital Securities, each at a rate
of 0.25% per annum; or
(iii) (A) the Issuer Trust has not exchanged
New Capital Securities for all Capital Securities
validly tendered for exchange by their respective
Holders or the Company has not exchanged the New
Guarantee or New Junior Subordinated Debentures for the
Guarantee or Junior Subordinated Debentures validly
tendered, in accordance with the terms of the Exchange
Offer on or prior to the 30th business day after the
date on which the Exchange Offer Registration Statement
was declared effective or (B) if applicable, the Shelf
Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be effective
at any time prior to the expiration of the Rule 144(k)
Period (other than after such time as all Capital
Securities have been disposed of thereunder or otherwise
cease to be Registrable Securities), then liquidated
damages shall accrue on the principal amount of the
Junior Subordinated Debentures and, if the Exchange
Offer has been consummated, the New Junior Subordinated
Debentures, and additional Distributions shall
accumulate on the liquidation amount of the
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Capital Securities and, if the Exchange Offer has been
consummated, the New Capital Securities, each at a rate
of 0.25% per annum commencing on (x) the 31st business
day after such effective date, in the case of (A) above,
or (y) the day such Shelf Registration Statement ceases
to be effective in the case of (B) above;
provided, however, that neither the liquidated damages on the Junior
Subordinated Debentures and any outstanding New Junior Subordinated Debentures,
nor the additional distribution rate on the liquidation amount of the Capital
Securities and any outstanding New Capital Securities, may 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 Statement
(in the case of clause (i) above), (2) upon the effectiveness of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of
clause (ii) above), or (3) upon the exchange of New Capital Securities, the New
Guarantee and New Junior Subordinated Debentures for all Capital Securities, the
Guarantee and all Junior Subordinated Debentures tendered (in the case of clause
(iii)(A) above), or upon the effectiveness of the Shelf Registration Statement
which had ceased to remain effective (in the case of clause (iii)(B) above)
liquidated damages on the Junior Subordinated Debentures and any outstanding New
Junior Subordinated Debentures, and additional distributions on the liquidation
amount of the Capital Securities and any outstanding New Capital Securities as a
result of such clause (or relevant subclause thereof), as the case may be, shall
cease to accrue and accumulate.
Any amounts of liquidated damages and additional distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above ("Liquidated Damages"), will be
payable in cash on the next succeeding April 15 or October 15, as the case may
be, to Holders on the relevant record dates for the payment of interest and
distributions pursuant to the Indenture and the Trust Agreement, respectively.
(f) Specific Enforcement. Without limiting the
remedies available to the Holders, the Company and the Issuer Trust acknowledge
that any failure by the Company or the Issuer Trust to comply with its
obligations under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain such relief as may
be required to specifically enforce the Company's and the Issuer Trust's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations
of the Company and the Issuer Trust with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company and the
Issuer Trust shall use their best efforts to:
(a) prepare and file with the Commission a Registration
Statement or Registration Statements as prescribed by Sections 2(a) and 2(b)
hereof within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be selected by
the Company and the Issuer Trust, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof and, in the case of an Exchange Offer, be available for
the exchange of the Registrable Securities, and (iii) shall comply as to form in
all material respects with the requirements of the applicable form and include
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all financial statements required by the Commission to be filed therewith; and
use their best efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2 hereof, provided, however,
that if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2(a) is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company and the Issuer Trust shall furnish to and afford the Holders of the
Registrable Securities and each Participating Broker-Dealer, as the case may be,
covered by such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed. The Company and the
Issuer Trust shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such document if the
Majority Holders or such Participating Broker-Dealer, as the case may be, their
counsel or the managing underwriters, if any, shall reasonably object;
(b) prepare and file with the Commission such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement effective for the Effectiveness
Period or the Applicable Period, as the case may be; and cause each Prospectus
to be supplemented, if so determined by the Company or the Issuer Trust or
requested by the Commission, by any required prospectus supplement and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision then in
force) under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations promulgated
thereunder applicable to it with respect to the disposition of all securities
covered by each Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended method or
methods of distribution by the selling Holders thereof described in this
Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify
each Holder of Registrable Securities included in the Shelf Registration
Statement, at least three Business Days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is being filed
and advising such Holder that the distribution of Registrable Securities will be
made in accordance with the method selected by the Majority Holders; and (ii)
furnish to each Holder of Registrable Securities included in the Shelf
Registration Statement and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Securities; and (iii) consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
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(d) in the case of a Shelf Registration, register or
qualify the Registrable Securities under all applicable state securities or
"blue sky" laws of such jurisdictions by the time the applicable Registration
Statement is declared effective by the Commission as any Holder of Registrable
Securities covered by a Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request in
writing in advance of such date of effectiveness, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder
and underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the Company
and the Issuer Trust shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file any
general consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject;
(e) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers from whom the Company or the Issuer Trust has
received prior written notice that they will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement as provided in Section
3(t) hereof, are seeking to sell Exchange Securities and are required to deliver
Prospectuses, notify each Holder of Registrable Securities or such Participating
Broker-Dealers, as the case may be, their counsel and the managing underwriters,
if any, promptly and promptly confirm such notice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
Commission or any state securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional information after the
Shelf Registration Statement has become effective, (iii) of the issuance by the
Commission or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the qualification of the
Registrable Securities or the Exchange Securities to be offered or sold by the
Participating Broker-Dealer in any jurisdiction described in paragraph 3(d)
hereof or the initiation of any proceedings for that purpose, (iv) in the case
of a Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered thereby,
any of the representations and warranties of the Company and the Issuer Trust
contained in any purchase agreement, securities sales agreement or other similar
agreement shall cease to be true and correct in all material respects, (v) of
the happening of any event or the failure of any event to occur or the discovery
of any facts or otherwise, during the Effectiveness Period which makes any
statement made in such Registration Statement or the related Prospectus untrue
in any material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (vi) the Company and the Issuer Trust's reasonable determination
that a post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment;
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(g) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities included within the coverage of such
Registration Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends and in such denominations
(consistent with the provisions of the Indenture and the Trust Agreement) and
registered in such names as the selling Holders or the underwriters may
reasonably request at least two Business Days prior to the closing of any sale
of Registrable Securities pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best efforts to
prepare a supplement or post-effective amendment to such Registration Statement
or the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and to notify each Holder to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event;
(j) in the case of a Shelf Registration, a reasonable
time prior to the filing of any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after the initial filing
of a Registration Statement, provide a reasonable number of copies of such
document to the Holders; and make such of the representatives of the Company and
the Issuer Trust as shall be reasonably requested by the Holders of Registrable
Securities or the Initial Purchaser on behalf of such Holders available for
discussion of such document;
(k) obtain a CUSIP number for all New Capital
Securities and the Capital Securities (and if the Issuer Trust has made a
distribution of the Junior Subordinated Debentures or New Junior Subordinated
Debentures to the Holders of the Capital Securities, the Junior Subordinated
Debentures), not later than the effective date of an Exchange Offer Registration
Statement, and provide the Trustee with printed certificates for the Exchange
Securities or the Registrable Securities in a form eligible for deposit with the
Depositary;
(1) cause the Indenture, the Trust Agreement, the
Guarantee, and the New Guarantee to be qualified under the Trust Indenture Act
of 1939 (the "TIA") in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and use its best efforts to
cause the relevant trustee to execute, all documents as may be required to
effect such changes, and all other forms
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and documents required to be filed with the Commission to enable such documents
to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into
such agreements (including underwriting agreements) as are customary in
underwritten offerings and take all such other appropriate actions as are
reasonably requested in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x) the Initial
Purchaser, in the case where such Initial Purchaser holds Securities acquired by
it as part of its initial distribution and (y) other Holders of Securities
covered thereby: (i) make such representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with respect to the
business of the Issuer Trust, the Company and its subsidiaries as then conducted
and the Shelf Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Company and the Issuer Trust and updates thereof (which may be in the form of a
reliance letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in principal amount of the
Registrable Securities being sold, addressed to each selling Holder and the
underwriters (if any) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such underwriters (it being agreed that the matters to be covered
by such opinions may be subject to customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters from the independent
certified public accountants of the Company and the Issuer Trust (and, if
necessary, any other independent certified public accountants of any subsidiary
of the Company and the Issuer Trust or of any business acquired by the Company
and the Issuer Trust for which financial statements and financial data are, or
are required to be, included in the Shelf Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No. 72; and
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 4 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable Securities
covered by such Shelf Registration Statement and the managing underwriters or
agents) with respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders). The
above shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, make reasonably available for
inspection by any selling Holder of such Registrable Securities being sold or
each such Participating Broker-
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Dealer, as the case may be, any underwriter participating in any such
disposition of Registrable Securities, and any attorney, accountant or other
agent retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, all financial and other records, pertinent corporate documents and
properties of the Issuer Trust, the Company and its subsidiaries (collectively,
the "Records") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors and
employees of the Issuer Trust, the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by any such Inspector in
connection with such Shelf Registration Statement provided, however, that the
foregoing inspection and information gathering shall be coordinated by the
Initial Purchaser and, on behalf of the selling Holders of Registrable
Securities, by one counsel designated as described in Section 2(c) hereof.
Records which the Company and the Issuer Trust determine, in good faith, to be
confidential and any records which either of them notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a material misstatement or
omission in such Registration Statement, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or is necessary in connection with any action, suit or proceeding
or (iii) the information in such Records has been made generally available to
the public. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree in writing that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuer Trust or the Company unless and
until such is made generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company at its expense to undertake appropriate action
to prevent disclosure of the Records deemed confidential;
(o) comply with all applicable rules and regulations
of the Commission so long as any provision of this Agreement shall be applicable
and make generally available to their respective security holders earning
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and (ii)
if not sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer or a
Private Exchange, if requested by a Trustee, obtain an opinion of counsel to the
Company addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or the Private Exchange, as the
case may be, and which includes an opinion that (i) the Company or the Issuer
Trust, as the case requires, has duly authorized, executed and delivered the
Exchange Securities or the Private Exchange Securities, as the case may be, and
(ii) each of the Exchange
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Securities or the Private Exchange Securities, as the case may be, constitute a
legal, valid and binding obligation of the Company or the Issuer Trust, as the
case requires, enforceable against the Company or the Issuer Trust, as the case
requires, in accordance with their respective terms (in each case, with
customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Securities by Holders to the
Company or the Issuer Trust, as applicable (or to such other Person as directed
by the Company or the Issuer Trust, respectively), in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, xxxx, or
cause to be marked, on such Registrable Securities delivered by such Holders
that such Registrable Securities are being cancelled in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be; in
no event shall such Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable
Securities covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
NASD;
(s) use its best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," which section shall be reasonably acceptable to
the Initial Purchaser or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the positions
taken or policies made by the staff of the Commission with respect to the
potential "underwriter" status of any broker-dealer (a "Participating
Broker-Dealer") that holds Registrable Securities acquired for its own account
as a result of market-making activities or other trading activities and that
will be the beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of Exchange Securities to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly disseminated by the
staff of the Commission or such positions or policies, in the reasonable
judgment of the Initial Purchaser or such other representative, represent the
prevailing views of the staff of the Commission, including a statement that any
such broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the notice referred
to in Section 3(e), without charge, as many copies of each Prospectus included
in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request (each of the Company and the Issuer Trust
hereby consents to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto by any Person
subject to the prospectus delivery requirements of the Securities Act, including
all Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or
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any amendment or supplement thereto), (iii) keep the Exchange Offer Registration
Statement effective and amend and supplement the Prospectus contained therein in
order to permit such Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Securities Act for such period of
time as such Persons must comply with such requirements under the Securities Act
and applicable rules and regulations in order to resell the Exchange Securities;
provided, however, that such period shall not be required to exceed 90 days (or
such longer period if extended pursuant to the last sentence of Section 3
hereof) (the "Applicable Period"), and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of Exchange Securities received in
respect of such Registrable Securities pursuant to the Exchange
Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer will
not be deemed to admit that it is an underwriter within the meaning of the
Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company and the Issuer Trust agree to deliver to the Initial
Purchaser or to another representative of the Participating Broker-Dealers, if
requested by such Initial Purchaser or such other representative of the
Participating Broker-Dealers, on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (i) an opinion of counsel in form and
substance reasonably satisfactory to the Initial Purchaser or such other
representative of the Participating Broker-Dealers, covering the matters
customarily covered in opinions requested in connection with Exchange Offer
Registration Statements and such other matters as may be reasonably requested
(it being agreed that the matters to be covered by such opinion may be subject
to customary qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in Section
5(f) of the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities and (iii) as well
as upon the effectiveness of the Exchange Offer Registration Statement, a
comfort letter, in each case, in customary form if permitted by Statement on
Auditing Standards No. 72.
The Company or the Issuer Trust may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company or the Issuer Trust, as applicable, such information regarding
such seller as may be required by the staff of the Commission to be included in
a Registration Statement. The Company or the Issuer Trust may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such request.
The Company shall have no obligation to register under the Securities Act the
Registrable Securities of a seller who so fails to furnish such information.
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In the case of (1) a Shelf Registration Statement or (2)
Participating Broker-Dealers who have notified the Company and the Issuer Trust
that they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof and are seeking to
sell Exchange Securities and are required to deliver Prospectuses, each Holder
agrees that, upon receipt of any notice from the Company or the Issuer Trust of
the happening of any event of the kind described in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith suspend use of the
Prospectus and discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company and the Issuer Trust that
the use of the applicable Prospectus may be resumed, and, if so directed by the
Company and the Issuer Trust, such Holder will deliver to the Company or the
Issuer Trust (at the Company's or the Issuer Trust's expense, as the case
requires) all copies in such Holder's possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Securities, as the case may be, current at
the time of receipt of such notice. If the Company or the Issuer Trust shall
give any such notice to suspend the disposition of Registrable Securities, or
Exchange Securities, as the case may be, pursuant to a Registration Statement,
the Company and the Issuer Trust shall use their best efforts to file and have
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Registration Statement and shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days in the period from and including the date of the
giving of such notice to and including the date when the Company and the Issuer
Trust shall have made available to the Holders (x) copies of the supplemented or
amended Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution.
(a) In connection with any Registration Statement,
the Company and the Issuer Trust shall, jointly and severally,
indemnify and hold harmless the Initial Purchaser, each Holder, each
underwriter who participates in an offering of the Registrable Securities, each
Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective directors, officers, employees
and agents, as follows:
(i) from and against any and all loss,
liability, claim, damage and expense whatsoever, joint or several,
as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement
(or any amendment thereto), covering Registrable Securities or
Exchange Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained
in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
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(ii) from and against any and all loss,
liability, claim, damage and expense whatsoever, joint or several,
as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any court or governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the prior written consent of the
Company; and
(iii) from and against any and all expenses
whatsoever, as incurred (including reasonable fees and disbursements
of counsel chosen by such Holder, such Participating Broker-Dealer,
or any underwriter (except to the extent otherwise expressly
provided in Section 4(c) hereof)), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any court or governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) of this Section 4(a);
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished in writing to the
Company or the Issuer Trust by such Holder, such Participating Broker-Dealer, or
any underwriter with respect to such Holder, Participating Broker-Dealer or any
underwriter, as the case may be, expressly for use in a Registration Statement
(or any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) and (ii) the Company and the Issuer Trust shall not be liable to any
such Holder, Participating Broker-Dealer, any underwriter or controlling person,
with respect to any untrue statement or alleged untrue statement or omission or
alleged omission in any preliminary Prospectus to the extent that any such loss,
liability, claim, damage or expense of any Holder, Participating Broker-Dealer,
any underwriter or controlling person results from the fact that such Holder,
any underwriter or Participating Broker-Dealer, sold Securities to a person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final Prospectus as then amended or supplemented if the
Company had previously furnished copies thereof to such Holder, underwriter, or
Participating Broker-Dealer, and the loss, liability, claim, damage or expense
of such Holder, underwriter, Participating Broker-Dealer, or controlling person
results from an untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the final Prospectus. Any amounts
advanced by the Company or the Issuer Trust to an indemnified party pursuant to
this Section 4 as a result of such losses shall be returned to the Company or
the Issuer Trust if it shall be finally determined by such a court in a judgment
not subject to appeal or final review that such indemnified party was not
entitled to indemnification by the Company or the Issuer Trust.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Issuer Trust, any underwriter and the other
selling Holders and each of their respective directors, officers (including each
officer of the Company and the Issuer Trust
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who signed the Registration Statement), employees and agents and each Person, if
any, who controls the Company, the Issuer Trust, any underwriter or any other
selling Holder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any and all loss, liability, claim,
damage and expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company or the Issuer Trust by such selling Holder with respect
to such Holder expressly for use in such Registration Statement (or any
amendment thereto), or any such Prospectus (or any amendment or supplement
thereto); provided, however, that, in the case of a Shelf Registration
Statement, no such Holder shall be liable for any amount hereunder in excess of
the amount of net proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability which it may have
under this Section 4, except to the extent that it is materially prejudiced by
such failure. An indemnifying party may participate at its own expense in the
defense of such action. If an indemnifying party so elects within a reasonable
time after receipt of such notice, an indemnifying party, severally or jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and reasonably acceptable to
the indemnified parties defendant in such action, provided, however, that if (i)
representation of such indemnified party by the same counsel would present a
conflict of interest or (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the indemnifying
party and any such indemnified party reasonably determines that there may be
legal defenses available to such indemnified party which are different from or
in addition to those available to such indemnifying party, then in the case of
clauses (i) and (ii) of this Section 4(c) such indemnifying party and counsel
for each indemnifying party or parties shall not be entitled to assume such
defense. If an indemnifying party is not entitled to assume the defense of such
action as a result of the proviso to the preceding sentence, counsel for such
indemnifying party and counsel for each indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or parties. If an
indemnifying party assumes the defense of such action, in accordance with and as
permitted by the provisions of this paragraph, such indemnifying parties shall
not be liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to local counsel), separate from its own counsel, for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties
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thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release in form and substance satisfactory to the
indemnified parties of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Notwithstanding the last sentence of Section 4(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel
pursuant to Section 4(a)(iii) above, such indemnifying party agrees that it
shall be liable for any settlement effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; provided that an indemnifying party shall not be
liable for any such settlement effected without its consent if such indemnifying
party (1) reimburses such indemnified party in accordance with such request to
the extent it considers reasonable and (2) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company, the Issuer Trust,
and the Holders shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company, the Issuer Trust, and the Holders, as incurred;
provided that no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any Person that was not guilty of such fraudulent misrepresentation. As between
the Company, the Issuer Trust, and the Holders, such parties shall contribute to
such aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect the relative fault of the Company and Issuer Trust, on
the one hand, and the Holders, on the other hand, with respect to the statements
or omissions which resulted in such loss, liability, claim, damage or expense,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company and the Issuer Trust, on the
one hand, and of the Holders, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Issuer Trust, on the one
hand, or by or on behalf of the Holders, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Issuer Trust and the Holders of the
Registrable Securities agree that it would not be just and equitable if
contribution pursuant to this Section 4 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 4, each
affiliate of a Holder, and each director, officer, employee, agent and Person,
if any, who controls a Holder or such affiliate within the meaning of Section 15
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of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Holder, and each director of each of the Company
or the Issuer Trust, each officer of each of the Company or the Issuer Trust who
signed the Registration Statement, and each Person, if any, who controls each of
the Company and the Issuer Trust within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as each of the Company or the Issuer Trust.
5. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
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 (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable
Securities covered by a Shelf Registration Statement who desire to do so may
sell the securities covered by such Shelf Registration in an underwritten
offering. In any such underwritten offering, the underwriter or underwriters and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of the Registrable
Securities included in such offering; provided, however, that such underwriters
and managers must be reasonably satisfactory to the Company and the Issuer
Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the
Company or the Issuer Trust is subject to the reporting requirements of Section
13 or 15 of the Exchange Act and any Registrable Securities remain outstanding,
each of the Company and the Issuer Trust, as the case may be, will use its best
efforts to file the reports required to be filed by it under the Securities Act
and Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the Commission thereunder, or, if it ceases to be so required to file
such reports, it will, upon the request of any Holder of Registrable Securities
(a) make publicly available such information as is necessary to permit sales of
their securities pursuant to Rule 144 under the Securities Act, (b) deliver such
information to a prospective purchaser as is necessary to permit sales of their
securities pursuant to Rule 144A under the Securities Act and it will take such
further action as any Holder of Registrable Securities may reasonably request,
and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, (ii) Rule 144A
under the Securities Act, as such rule may be amended from time to time, or
(iii) any similar rules or regulations hereafter adopted by the Commission. Upon
the request of any Holder of Registrable Securities, the Company or the Issuer
Trust, as the case may be, will deliver to such Holder a written statement as to
whether it has complied with such requirements.
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(b) No Inconsistent Agreements. The Company or the
Issuer Trust has not entered into nor will the Company or the Issuer Trust on or
after the date of this Agreement enter into any agreement which is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's or the
Issuer Trust's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company and the Issuer Trust have
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or departure; provided no amendment,
modification or supplement or waiver or consent to the departure with respect to
the provisions of Section 4 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder of
Registrable Securities. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Securities, by written agreement signed by the Company, the Issuer Trust and the
Initial Purchaser, to cure any ambiguity, correct or supplement any provision of
this Agreement that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with other
provisions of this Agreement, (ii) this Agreement may be amended, modified or
supplemented, and waivers and consents to departures from the provisions hereof
may be given, by written agreement signed by the Company, the Issuer Trust and
the Initial Purchaser to the extent that any such amendment, modification,
supplement, waiver or consent is, in their reasonable judgment, necessary or
appropriate to comply with applicable law (including any interpretation of the
Staff of the Commission) or any change therein and (iii) to the extent any
provision of this Agreement relates to the Initial Purchaser, such provision may
be amended, modified or supplemented, and waivers or consents to departures from
such provisions may be given, by written agreement signed by the Initial
Purchaser, the Company and the Issuer Trust.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by such
Holder to the Company or the Issuer Trust by means of a notice given in
accordance with the provisions of this Section 7(d), which address initially is,
with respect to the Initial Purchaser, the address set forth in the Purchase
Agreement; and (ii) if to the Company or the Issuer Trust, initially at the
Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 7(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if
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telecopied; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees of
the Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third-Party Beneficiary. The Initial
Purchaser shall be a third party beneficiary of the agreements made
hereunder between the Company and the Issuer Trust, on the one hand, and the
Holders, on the other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE IN THE STATE OF MARYLAND. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF MARYLAND IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
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validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Securities Held by the Company, the Issuer Trust
or its Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company, the Issuer Trust or its affiliates (as such term
is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
PROVIDENT BANKSHARES CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
--------------------------
Title: President
-------------------------
PROVIDENT TRUST I
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
---------------------------
Title: Administrator
Confirmed and accepted as of the date first above written:
XXXXX, XXXXXXXX & XXXXX, INC.
By:/s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
-----------------------
Title: Senior Vice President
----------------------
