Exhibit 4.7
CAPITAL SECURITIES REGISTRATION RIGHTS AGREEMENT
THIS CAPITAL SECURITIES REGISTRATION RIGHTS AGREEMENT (the 'Agreement') is
made and entered into as of April 13, 1998 among UCBH Holdings, Inc., a
Delaware corporation (the 'Company'), UCBH Trust Co., a Delaware statutory
business trust (the 'Trust') and each of the undersigned Investors (hereinafter
referred to individually as an 'Investor' and collectively as the 'Investors').
This Agreement is made pursuant to the Purchase Agreement (the 'Purchase
Agreement'), among the Company, as issuer of the Series A 9.375% Junior
Subordinated Deferrable Interest Debentures due March 31, 2028 (the
'Subordinated Debentures'), the Trust and the Investors, which provides for,
among other things, the sale by the Trust to the Investors of the Trust's Series
A 9.375% Capital Securities, liquidation amount $1,000 per Capital Security (the
'Capital Securities'), the proceeds of which will be used by the Trust to
purchase Subordinated Debentures. The Capital Securities, together with the
Subordinated Debentures and the Company's guarantee of the Capital Securities
(the 'Capital Securities Guarantee'), are collectively referred to as the
'Securities'. In order to induce the Investors to enter into the Purchase
Agreement, the Company and the Trust have agreed to provide to the Investors and
their direct and indirect transferees the registration rights set forth in this
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:
'Additional Distributions' shall have the meaning set forth in
Section 2(e) hereof.
'Advice' shall have the meaning set forth in the last paragraph of
Section 3 hereof.
'Affiliate' has the same meaning as given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
'Agency Agreement' shall mean the Agency Agreement between the
Company, United Commercial Bank, the Trust and the Placement Agent with
respect to the sale of, among other things, the Capital Securities.
'Applicable Period' shall have the meaning set forth in Section
3(t) hereof.
'Business Day' means any day other than a Saturday, a Sunday, or a
day on which banking institutions in the State of California are
authorized or required by law or executive order to close.
'Capital Securities Shelf Registration' shall mean a registration
effected pursuant to Section 2(b) hereof.
'Capital Securities Shelf Registration Event' shall have the
meaning set forth in Section 2(b) hereof.
'Capital Securities Shelf Registration Event Date' shall have the
meaning set forth in Section 2(b) hereof.
'Capital Securities Shelf Registration Statement' shall mean a
'shelf' registration statement of the Company and the Trust pursuant to
the provisions of Section 2(b) hereof which covers all of the
Registrable Securities, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, 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.
'Closing Date' shall mean the Closing Date as defined in the Agency
Agreement.
'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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'Declaration' or 'Declaration of Trust' shall mean the Amended and
Restated Declaration of Trust of UCBH Trust Co., by the trustees named
therein, the Company as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Trust.
'Depositary' shall mean The Depository Trust Company, or any other
depositary appointed by the 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 Trust
to the Holders to exchange all of the Registrable 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
Subordinated Debentures, the Series B 9.375% Junior Subordinated
Deferrable Interest Debentures due May 1, 2028 (the 'Exchange
Debentures') containing terms substantially identical to the
Subordinated Debentures (except that they will not contain terms with
respect to the transfer restrictions under the Securities Act (other
than requiring minimum transfers thereof to be in blocks of $100,000
aggregate principal amount), and will not provide for any Liquidated
Damages thereon), (ii) with respect to the Capital Securities, the
Trust's Series B 9.375% Capital Securities, liquidation amount $1,000
per Capital Security (the 'Exchange Capital Securities') which will have
terms substantially identical to the Capital Securities (except they
will not contain terms with respect to transfer restrictions under the
Securities Act (other than requiring minimum transfers thereof to be in
blocks of $100,000 aggregate liquidation amount), and will not provide
for any increase in Additional Distributions thereon) and (iii) with
respect to the Capital Securities Guarantee, the Company's guarantee
(the 'Exchange Capital Securities Guarantee') of the Exchange Capital
Securities which will have terms substantially identical to the Capital
Securities Guarantee.
'Holder' shall mean the Investors, for so long as they own any
Registrable Securities, and each of their respective successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture or Declaration of Trust.
'Indenture' shall mean the Indenture relating to the Subordinated
Debentures and the Exchange Debentures between the Company, as issuer,
and Wilmington Trust Company, as trustee, as the same may be amended
from time to time in accordance with the terms thereof.
'Inspectors' shall have the meaning set forth in Section 3(n)
hereof.
'Issue Date' shall mean April 17, 1998, 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.
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'Placement Agent' shall mean the Placement Agent as defined in the
Agency Agreement.
'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 Capital Securities
Shelf 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 mean the Agreement between the Company
and the Investors named therein.
'Records' shall have the meaning set forth in Section 3(n) hereof.
'Registrable Securities' shall mean the Securities; provided,
however, that Securities shall cease to be Registrable Securities when
(i) a Capital Securities Registration Statement with respect to such
Securities for the exchange or resale thereof, as the case may be, shall
have been declared effective under the Securities Act and such
Securities, shall have been disposed of pursuant to such Capital
Securities Registration Statement, (ii) such Securities 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 are
eligible to be sold without restriction as contemplated by Rule 144(k),
(iii) such Securities shall have ceased to be outstanding or (iv) 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).
'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 SEC 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 one counsel for all
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 any Capital Securities
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 its
counsel and any exchange agent or custodian, (vii) all fees and expenses
incurred in connection with the listing, if any, of any of the Exchange
Securities or 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 any Registration
Statement.
'Registration Statement' shall mean any registration statement of
the Company and the 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
shorter period as may hereafter be referred to in Rule 144(k) under the
Securities Act (or similar successor rule)) commencing on the Issue
Date.
'SEC' shall mean the Securities and Exchange Commission.
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'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.
'TIA' shall have the meaning set forth in Section 3(l) hereof.
'Trustees' shall mean any and all trustees with respect to (i) the
Capital Securities under the Declaration, (ii) the Subordinated
Debentures under the Indenture and (iii) the Capital Securities
Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the Company
and the Trust shall, for the benefit of the Holders, use their reasonable best
efforts to (i) cause to be filed with the SEC within 120 days after the Issue
Date an Exchange Offer Registration Statement on an appropriate form under the
Securities Act relating to the Exchange Offer, (ii) cause such Exchange Offer
Registration Statement to be declared effective under the Securities Act by the
SEC not later than the date which is 150 days after the Issue Date, and (iii)
keep such Exchange Offer Registration Statement effective for not less than 30
calendar days (or longer if required by applicable law) after the date notice of
the Exchange Offer is mailed to the Holders. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company and the Trust shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities for
a like principal amount of Exchange Debentures or a like liquidation amount of
Exchange Capital Securities, together with the Exchange Guarantee, as applicable
(assuming that such Holder (i) is not an Affiliate of the Trust or the Company,
(ii) is not a broker-dealer tendering Registrable Securities acquired directly
from the Company for its own account, (iii) acquires the Exchange Securities in
the ordinary course of such Holder's business and (iv) 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 (other than
requiring minimum transfers in blocks having an aggregate principal or
liquidation amount, as the case may be, of $100,000).
In connection with the 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 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 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
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
and the 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;
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(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
Declaration or the Guarantee, as applicable, to promptly authenticate and
deliver to each Holder, new Exchange Securities, equal in principal amount
to the principal amount of the 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 Exchange Capital Security and interest on each
Exchange Debenture issued pursuant to the Exchange Offer will accrue from the
last date on which a Distribution or interest was paid on the Capital Security
or the Subordinated Debenture surrendered in exchange therefor or, if no
Distribution or interest has been paid on such Capital Security or Subordinated
Debenture, from the Issue Date. To the extent not prohibited by any law or
applicable interpretation of the staff of the SEC, the Company and the Trust
shall use their reasonable 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 SEC. 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 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 Exchange Capital Securities.
The Company and the Trust shall inform the Placement Agent, after consultation
with the applicable Trustees, of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Placement Agent 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 Exchange
Securities held by Participating Broker-Dealers, and the Company and the Trust
shall have no further obligation to register the Registrable Securities held by
any Holder pursuant to Section 2(b) of this Agreement.
(b) Capital Securities Shelf Registration. In the event that (i) the
Company, the Trust or the Majority Holders reasonably determine, after
conferring with counsel (which may be in-house counsel), that the Exchange Offer
Registration provided in Section 2(a) above is not available under applicable
law and regulations and currently prevailing interpretations of the staff of the
SEC, (ii) 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 Exchange Offer would result in (x) the Trust becoming subject to federal
income tax with respect to income received or accrued on the Subordinated
Debentures or the Exchange Debentures (collectively, the 'Debentures'), (y)
interest payable by the Company on the Debentures not being deductible by the
Company for United States federal income tax purposes or (z) the Trust becoming
subject to more than a de minimus amount of other taxes, duties or governmental
charges or, (iii) the Exchange Offer Registration Statement is not declared
effective within 150 days of the Issue Date (any of the events specified in
(i)-(iii) being a 'Capital Securities Shelf Registration Event' and the date of
occurrence thereof, the 'Capital Securities Shelf Registration Event Date'),
then in addition to or in lieu of conducting the Exchange Offer contemplated by
Section 2(a), as the case may be, the Company and the Trust shall use their
reasonable best efforts to cause to be filed as promptly as practicable after
such Capital Securities Shelf Registration Event Date, as the case may be, and,
in any event, within 45 days after such Capital Securities Shelf Registration
Event Date (which shall be no earlier than 75 days after the Closing Date), a
Capital Securities Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities and shall use its reasonable best
efforts to have such Capital Securities Shelf Registration Statement declared
effective by the SEC as soon as practicable. No Holder of Registrable Securities
shall be entitled to include any of its Registrable Securities in any Capital
Securities Shelf Registration pursuant to this Agreement unless and until such
Holder furnishes to the Company and the Trust in writing, within 15 days after
receipt of a request therefor, such information as the Company and the Trust
may, after conferring with counsel with regard to information relating to
Holders that would be required by the SEC to be included in such
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Capital Securities Shelf Registration Statement or Prospectus included therein,
reasonably request for inclusion in any Capital Securities Shelf Registration
Statement or Prospectus included therein. Each Holder as to which any Capital
Securities Shelf Registration is being effected agrees to furnish to the Company
and the 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 Trust agree to use their reasonable best efforts to
keep the Capital Securities Shelf Registration Statement continuously effective
and usable for resales for the Rule 144(k) Period in the case of a Capital
Securities Shelf Registration Statement filed pursuant to Section 2(b) (subject
in each case to 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 Capital Securities Shelf Registration Statement have
been sold pursuant to the Capital Securities Shelf Registration Statement or
cease to be outstanding (the 'Effectiveness Period'). The Company and the Trust
shall not permit any securities other than Registrable Securities to be included
in the Capital Securities Shelf Registration Statement. The Company and the
Trust will, in the event a Capital Securities Shelf Registration Statement is
declared effective, provide to each Holder a reasonable number of copies of the
Prospectus which is a part of the Capital Securities Shelf Registration
Statement and notify each such Holder when the Capital Securities Shelf
Registration Statement has become effective. The Company and the Trust further
agree, if necessary, to supplement or amend the Capital Securities Shelf
Registration Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Capital
Securities Shelf Registration Statement or by the Securities Act or by any other
rules and regulations thereunder for shelf registrations, and the Company and
the 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
SEC.
(c) Expenses. The Company, as issuer of the Subordinated Debentures, shall
pay all Registration Expenses in connection with any Registration Statement
filed pursuant to Section 2(a) and/or 2(b) hereof and will reimburse the
Placement Agent for the reasonable fees and disbursements of Elias, Matz,
Xxxxxxx & Xxxxxxx LLP, counsel for the Placement Agent, incurred in connection
with the Exchange Offer, 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 Capital Securities 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 and any of
its other advisors or experts, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Capital Securities Shelf Registration
Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Capital Securities Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to
have become effective unless it has been declared effective by the SEC;
provided, however, that if, after it has been declared effective, the offering
of Registrable Securities pursuant to such Exchange Offer Registration Statement
or Capital Securities Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC 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 Trust will be deemed not to have used their
reasonable best efforts to cause the Exchange Offer Registration Statement or
the Capital Securities 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 any such Registration
Statement not being declared effective or that would result 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.
(e) Liquidated Damages. In the event that:
(i) neither the Exchange Offer Registration Statement is filed with
the SEC on or prior to the 120th day after the Issue Date nor a Capital
Securities Shelf Registration Statement is filed with the SEC on or prior
to the 45th day after the Capital Securities Shelf Registration Event Date
in respect of a Capital Securities Shelf Registration Event attributable to
any of the events set forth in Sections 2(b)(i), (ii) and (iii) (provided
that in no event shall such date be earlier than 75 days after the Issue
Date), then, commencing on the day
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after the applicable required filing date, liquidated damages ('Liquidated
Damages') shall accrue on the principal amount of the Subordinated
Debentures, and additional distributions ('Additional Distributions') shall
accumulate on the liquidation amount of the Trust Securities (as such term
is defined in the Declaration), each at a rate of .25% per annum; or
(ii) In the event the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the 180th day after the Issue
Date or, in the event that a Capital Securities Shelf Registration
Statement is filed following a Capital Securities Shelf Registration Event
attributable to any of the events set forth in Sections 2(b)(i), (ii) and
(iii) on or prior to the later of (A) the 60th day after the date such
Capital Securities Shelf Registration Statement was required to be filed
and (B) the 180th day after the Issue Date then, commencing on the 181st
day after the Issue Date (in the case of an Exchange Offer Registration
Statement) or the later of (A) the 61st day after the day such Capital
Securities Shelf Registration Statement was required to be filed in respect
of a Capital Securities Shelf Registration Event attributable to any of the
events set forth in Sections 2(b)(i), (ii) and (iii) and (B) the 181st day
after the Issue Date, Liquidated Damages shall accrue on the principal
amount of the Subordinated Debentures, and Additional Distributions shall
accumulate on the liquidation amount of the Trust Securities, each at a
rate of .25% per annum;
(iii) (A) the Trust has not exchanged Exchange Capital Securities or
the Company has not exchanged Exchange Guarantees or Exchange Subordinated
Debentures for all Capital Securities, Guarantees or Subordinated
Debentures, as the case may be, validly tendered, in accordance with the
terms of the Exchange Offer on or prior to the 45th day after the date on
which the Exchange Offer Registration Statement was declared effective or
(B) if applicable, the Capital Securities Shelf Registration Statement in
respect of a Capital Securities Shelf Registration Event attributable to
any of the events set forth in Sections 2(b)(i), (ii) and (iii) has been
declared effective and such Capital Securities Shelf Registration Statement
ceases to be effective or usable for resales (whether as a result of an
event contemplated by Section 3(e) or otherwise) at any time prior to the
expiration of the Rule 144(k) Period (other than after such time as all
Securities have been disposed of thereunder or otherwise cease to be
Registrable Securities), then Liquidated Damages shall accrue on the
principal amount of Subordinated Debentures, and Additional Distributions
shall accumulate on the liquidation amount of the Trust Securities, each at
a rate of .25% per annum commencing on (x) the 46th day after such
effective date, in the case of (A) above, or (y) the day such Capital
Securities Shelf Registration Statement ceases to be effective or usable
for resales in the case of (B) above;
provided, however, that neither the Liquidated Damages rate on the Subordinated
Debentures, nor the Additional Distribution rate on the liquidation amount of
the Trust Securities, may exceed in the aggregate .25% per annum; provided,
further, however, that (1) upon the filing of the Exchange Offer Registration
Statement or a Capital Securities Shelf Registration Statement (in the case of
clause (i) above), (2) upon the effectiveness of the Exchange Offer Registration
Statement or a Capital Securities Shelf Registration Statement (in the case of
clause (ii) above), or (3) upon the exchange of Exchange Capital Securities,
Exchange Guarantees and Exchange Debentures for all Capital Securities,
Guarantees and Subordinated Debentures validly tendered (in the case of clause
(iii)(A) above), or at such time as the Capital Securities Shelf Registration
Statement which had ceased to remain effective or usable for resales again
becomes effective and usable for resales (in the case of clause (iii)(B) above),
Liquidated Damages on the principal amount of the Subordinated Debentures and
Additional Distributions on the liquidation amount of the Trust Securities as a
result of such clause (or the relevant subclause thereof) 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 will be payable in cash on the next
succeeding May 1 and November 1, 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 Declaration, respectively.
(f) Specific Enforcement. Without limiting the remedies available to the
Holders, the Company and the Trust acknowledge that any failure by the Company
or the 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
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the event of any such failure, any Holder may obtain such relief as may be
required to specifically enforce the Company's and the Trust's obligations under
Section 2(a) and Section 2(b) hereof.
(g) Distribution of Subordinated Debentures. Notwithstanding any other
provisions of this Agreement, in the event that Subordinated Debentures are
distributed to holders of Capital Securities in liquidation of the Trust
pursuant to the Declaration, (i) all references in this Section 2 and in Section
3 to Securities, Registrable Securities and Exchange Securities shall not
include the Capital Securities and Capital Securities Guarantee or Exchange
Capital Securities and Exchange Capital Securities Guarantee issued or to be
issued in exchange therefor in the Exchange Offer and (ii) all requirements for
action to be taken by the Trust in this Section 2 and in Section 3 shall cease
to apply and all requirements for action to be taken by the Company in this
Section 2 and in Section 3 shall apply to the Subordinated Debentures and
Exchange Debentures issued or to be issued in exchange therefor in the Exchange
Offer.
3. Registration Procedures. In connection with the obligations of the
Company and the Trust with respect to the Registration Statements pursuant to
Sections 2(a) and 2(b) hereof, the Company and the Trust shall:
(a) prepare and file with the SEC 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 Trust, (ii) shall, in the case of a Capital
Securities 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 Registrable Securities, and (iii)
shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the
SEC to be filed therewith; and use its best efforts to cause such Capital
Securities Registration Statement to become effective and remain effective
(and, in the case of a Capital Securities Shelf Registration Statement,
usable for resales) 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 Trust shall furnish to and afford
the Holders of the Registrable Securities and each such 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 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 SEC 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 Trust or requested by
the SEC, 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 Capital Securities Shelf Registration, (i) notify
each Holder of Registrable Securities included in the Capital Securities
Shelf Registration Statement, at least three Business Days prior to filing,
that a Capital Securities 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 Capital Securities Shelf
Registration Statement and to each underwriter of an underwritten offering
of
D-8
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 Capital
Securities Shelf Registration Statement in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(d) in the case of a Capital Securities Shelf Registration, use its
reasonable best efforts to register or qualify the Registrable Securities
under all applicable state securities or 'blue sky' laws of such
jurisdictions by the time the applicable Capital Securities Shelf
Registration Statement is declared effective by the SEC as any Holder of
Registrable Securities covered by a Capital Securities Shelf 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 Trust shall not be required to (i) qualify as a foreign company 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) (1) in the case of a Capital Securities Shelf Registration or (2)
if Participating Broker-Dealers from whom the Company or the 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, promptly notify each Holder of
Registrable Securities, or such Participating Broker-Dealers, as the case
may be, their counsel and the managing underwriters, if any, and promptly
confirm such notice in writing (i) when a Capital Securities Shelf
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by
the SEC or any state securities authority for amendments and supplements to
a Capital Securities Shelf Registration Statement or Prospectus or for
additional information after the Capital Securities Shelf Registration
Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness
of a Capital Securities Shelf Registration Statement or the qualification
of the Registrable Securities or the Exchange Securities to be offered or
sold by any 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 Capital Securities Shelf Registration, if,
between the effective date of a Capital Securities Shelf Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company and the Trust
contained in any purchase agreement, securities sales agreement or other
similar agreement 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 Capital Securities Shelf
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 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 Capital Securities Shelf Registration
Statement at the earliest possible moment;
(g) in the case of a Capital Securities Shelf Registration, furnish to
each Holder of Registrable Securities included within the coverage of such
Capital Securities Shelf Registration Statement, without charge, one
conformed copy of each Capital Securities Shelf Registration Statement
relating to such Capital Securities Shelf Registration and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
D-9
(h) in the case of a Capital Securities 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 (other than
with respect to restrictions requiring minimum transfers in blocks having
an aggregate principal or liquidation amount, as the case may be, of
$100,000) and in such denominations (consistent with the provisions of the
Indenture and the Declaration) 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 Capital Securities Shelf Registration Statement;
(i) in the case of a Capital Securities 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 reasonable 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, and each Holder hereby agrees to suspend use of the Prospectus until
the Company has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) obtain a CUSIP number for all Exchange Capital Securities and the
Capital Securities (and if the Trust has made a distribution of the
Subordinated Debentures to the Holders of the Capital Securities, the
Subordinated Debentures or the Exchange Debentures) as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible for deposit
with the Depositary;
(k) cause the Indenture, the Declaration, the Guarantee and the
Exchange 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 and documents required to be filed with
the SEC to enable such documents to be so qualified in a timely manner;
(l) in the case of a Capital Securities Shelf Registration, enter into
such agreements (including underwriting agreements) as are customary in
underwritten offerings and take all such other appropriate actions in
connection therewith as are reasonably requested by the holders of at least
25% in aggregate principal or liquidation amount, as the case may be, of
the Registrable Securities in order to expedite or facilitate the
registration or the disposition of the Registrable Securities;
(m) in the case of a Capital Securities Shelf Registration, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by Holders of at
least 25% in aggregate principal or liquidation amount, as the case may be,
of the Registrable 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 Trust,
the Company and its subsidiaries as then conducted and the 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 of debt securities to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Company and the 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 opinion 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 Trust
D-10
(and, if necessary, any other independent certified public accountants of
any subsidiary of the Company and the Trust or of any business acquired by
the Company and the Trust for which financial statements and financial data
are, or are required to be, included in the 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 or liquidation amount, as the case may be, of Registrable
Securities covered by such Registration Statement and the managing
underwriters and agents) customary for such agreements 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 Capital Securities Shelf Registration Statement 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 or Participating Broker-Dealer, as applicable, who
certifies to the Company and the Trust that it has a current intention to
sell Registrable Securities pursuant to the Capital Securities Shelf
Registration Statement, any underwriter participating in any such
disposition of Registrable Securities, if any, 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 the Company's normal business hours, all financial and other
records, pertinent corporate documents and properties of the 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 Trust, the Company and its subsidiaries to supply all relevant
information in each case reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the Company and
the Trust determine, in good faith, to be confidential and any Records
which it 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) subject to the last sentence of this Section 3(n), 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 (other than by an Inspector or
a selling Holder in breach of its obligations hereunder). 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 Trust or the Company unless and until such is made
generally available to the public through no fault of an Inspector or a
Selling Holder. 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, or in connection with any
action, suit or proceeding 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 SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its securityholders 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;
D-11
(p) upon consummation of an Exchange Offer, 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, substantially to the effect that (i) the Company and the
Trust, as the case requires, has duly authorized, executed and delivered
the Exchange Securities, and (ii) each of the Exchange Securities
constitutes a legal, valid and binding obligation of the Company or the
Trust, as the case requires, enforceable against the Company or the Trust,
as the case requires, in accordance with its respective terms (in each
case, with customary exceptions);
(q) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Securities by Holders to the Company or the Trust, as
applicable (or to such other Person as directed by the Company or the
Trust, respectively), in exchange for the Exchange Securities, the Company
or the Trust, as applicable, shall 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; 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) 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
Placement Agent or a 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 SEC 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 SEC or such positions or policies, in the reasonable
judgment of the Placement Agent or such other representative, represent the
prevailing views of the staff of the SEC, 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 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 any amendment or supplement
thereto), (iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of
the Securities Act for such period of time as such Persons must comply with
such requirements 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
D-12
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 Trust agree to deliver to the Placement Agent or to a representative of
the Participating Broker-Dealers, if requested by the Placement Agent or such
other representative of 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
Placement Agent 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 4.2(k) of the Agency 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 Trust may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company or the
Trust, as applicable, such information regarding such seller as may be required
by the staff of the SEC to be included in a Registration Statement. The Company
or the Trust may exclude from such registration the Registrable Securities of
any seller who 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.
In the case of a Capital Securities Shelf Registration Statement, or if
Participating Broker-Dealers who have notified the Company and the Trust 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, each Holder agrees
that, upon receipt of any notice from the Company or the 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 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 Trust that the use of the applicable Prospectus may be resumed,
and, if so directed by the Company and the Trust, such Holder will deliver to
the Company or the Trust (at the Company's or the 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 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 Trust shall use their reasonable 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 is required to be maintained effective and
usable for resales 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 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 Trust shall, jointly and severally,
indemnify and hold harmless the Placement Agent, 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 partners, 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
D-13
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;
(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 information furnished in writing to the Company or
the 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 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 Trust to an indemnified party pursuant to this Section 4 as a
result of such losses shall be returned to the Company or the 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 Trust.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Trust, any underwriter and the other selling Holders
and each of their respective directors, officers (including each officer of the
Company and the Trust who signed the Registration Statement), employees and
agents and each Person, if any, who controls the Company, the 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 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 Capital Securities Shelf
Registration Statement, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Capital Securities Shelf Registration
Statement.
D-14
(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, or, if it so elects within a reasonable time after receipt of
such notice, assume the defense of any suit brought to enforce any such claim;
but if it so elects to assume the defense, such defense shall be conducted by
counsel chosen by it and approved by the indemnified party or parties which
approval shall not be unreasonably withheld. In the event that an indemnifying
party elects to assume the defense of any such suit and retain such counsel, the
indemnified party or parties shall bear the fees and expenses of any additional
counsel thereafter retained by such indemnified party or parties; provided,
however, that the indemnified party or parties shall have the right to employ
counsel (in addition to local counsel) to represent the indemnified party or
parties who may be subject to liability arising out of any action in respect of
which indemnity may be sought against the indemnifying party if, in the
reasonable judgment of counsel for the indemnified party or parties, there may
be legal defenses available to such indemnified party or parties which are
different from or in addition to those available to the indemnifying party, in
which event the fees and expenses of appropriate separate counsel shall be borne
by the indemnifying party. 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 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) 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 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 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
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 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 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
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 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 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 Trust, each officer of each of the Company or the Trust who
signed the Registration Statement, and each Person, if any, who controls each of
the Company and the Trust
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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 Trust.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in the
underwriting arrangement 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 the Capital Securities Shelf Registration Statement who desire to do
so may sell the securities covered by such Capital Securities Shelf Registration
Statement in an underwritten offering, subject to the provisions of section 3(l)
hereof. 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 or liquidation amount, as
applicable, of the Registrable Securities included in such offering; provided,
however, that such underwriters and managers must be reasonably satisfactory to
the Company and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company or the 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
Trust, as the case may be, will 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 SEC thereunder, provided that 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 its securities pursuant to Rule 144 under the
Securities Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales of its securities pursuant to Rule 144A under the
Securities Act, 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 SEC.
Upon the request of any Holder of Registrable Securities, the Company and the
Trust will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. The Company or the Trust has not entered
into, nor will the Company or the 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 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 Trust has 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 that 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 and the Trust, 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
and the Trust to the extent that any such amendment,
D-16
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 SEC) or any change therein and (iii) any
provision of this Agreement may be amended and the observance of any provision
of this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of time
or indefinitely), with the written consent of the Company and the Holders of not
less than a majority of the Registrable Securities; provided, however, that no
such amendment or waiver shall reduce the aforesaid percentage of Registrable
Securities the Holders of which are required to consent to any waiver or
supplemental agreement without the consent of the Holders of all outstanding
Registrable Securities. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon the Company, the Trust and each Holder under
this Agreement. Upon the effectuation of each such amendment or waiver, the
Company and the Trust shall promptly give written notice thereof to the Holders
who have not previously consented thereto in writing.
(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 Trust by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is the address set
forth in the Investor Signature Page to the Purchase Agreement; and (ii) if to
the Company or the Trust, initially at the Company's address set forth in the
Agency 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 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 Investors,
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 Placement Agent and any Participating
Broker-Dealer shall be a third party beneficiary of the agreements made
hereunder between the Company and the 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 NEW YORK. 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 NEW YORK 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 NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
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MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE COMPANY,
ON BEHALF OF ITSELF AND THE SUBSIDIARIES (INCLUDING, WITHOUT LIMITATION, THE
TRUST), IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
UCBH HOLDINGS, INC.
By: /s/ Xxxxx X. Xx
--------------------------------
Name: Xxxxx X. Xx
Title: President and Chief
Executive Officer
UCBH TRUST CO.
By: /s/ Xxxxx X. Xx
--------------------------------
Name: Xxxxx X. Xx
Title: Administrative Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Administrative Trustee
By: /s/ Xxxxxx Xxxx Xxx
--------------------------------
Name: Xxxxxx Xxxx Xxx
Title: Administrative Trustee
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Investor Signature Page to the Capital Securities Registration Rights Agreement
____________________________________
Name of Investor
By: ____________________________________
Name:
Title:
Address:____________________________
____________________________________
____________________________________
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