Exhibit 4.9
MERCANTILE CAPITAL TRUST I
$150,000,000 FLOATING RATE CAPITAL TRUST PASS-THROUGH SECURITIES/sm/ (TRUPS/sm/)
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
MERCANTILE BANCORPORATION INC.
REGISTRATION RIGHTS AGREEMENT
-----------------------------
New York, New York
January 29, 1997
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Mercantile Capital Trust I (the "Trust"), a statutory business trust
formed under the laws of the state of Delaware by Mercantile Bancorporation Inc.
(the "Company"), proposes to issue and sell to the Initial Purchasers (the
"Initial Purchasers") named in the Purchase Agreement of even date herewith (the
"Purchase Agreement"), for whom you are acting as representative (the
"Representative"), the Floating Rate Capital Trust Pass-through Securities (the
"Capital Securities") of the Trust. The issue and sale of the Capital
Securities pursuant to the Purchase Agreement is referred to herein as the
"Initial Placement." The Capital Securities, together with the guarantee of the
Company with respect thereto (the "Guarantee") and the Floating Rate Junior
Subordinated Deferrable Interest Debentures due 2027 of the Company (the
"Subordinated Debt Securities"), are collectively referred to herein as the
"Registrable Securities." As an inducement to the Initial Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Initial Purchasers thereunder, the Company and the Trust
agree with you, (i) for your benefit and the benefit of the other Initial
Purchasers and (ii) for the benefit of the holders from time to time of the
Registrable Securities and the Exchange Securities (as defined below), including
the Initial Purchasers (each of the foregoing a "Holder" and together the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capital Securities" has the meaning set forth in the preamble hereto.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"DTC" means the Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Prospectus" means the Prospectus contained in the
Exchange Offer Registration Statement, as it may be amended or supplemented from
time to time.
"Exchange Offer Registration Period" means the 1-year period following
the consummation of the Registered Exchange Offer, exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Exchange Offer Registration Statement, or the Company otherwise fails to
maintain continuous effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement
of the Company and the Trust on an appropriate form under the Act with respect
to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" means the securities of the Company and the
Trust issued pursuant to a Registered Exchange Offer in the same aggregate
principal amount or in the same number or liquidation amount, as the case may
be, and containing terms that are identical in all material respects to the
terms of the Registrable Securities except (i) the Exchange Securities shall
have been registered for sale under the Act to Holders and (ii) the interest
rate step-up provisions and the transfer restrictions in the Registrable
Securities will be modified or eliminated, as appropriate, in the Exchange
Securities.
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"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) which is a broker-dealer electing to exchange Registrable
Securities, acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Securities.
"Final Offering Memorandum" means the final Offering Memorandum issued
in connection with the Initial Placement and dated as of January 29, 1997
relating to the Registrable Securities.
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Interest Payment Date" has the meaning set forth in Section 3(c)
hereof.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities or the Exchange
Securities, covered by such Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Registered Exchange Offer" means the offer to the Holders to issue
and deliver to such Holders, in exchange for the Registrable Securities, a like
principal amount, stated liquidation preference or number, as the case may be,
of the Exchange Securities.
"Registrable Securities" has the meaning set forth in the preamble
hereto.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
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"Representative" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Event" has the meaning set forth in Section 2(g)
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company and the Trust pursuant to the provisions of Section 3 hereof
which covers some or all of the Registrable Securities or Exchange Securities,
as applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Payment" has the meaning set forth in Section 3(c) hereof.
"Subordinated Debt Securities" has the meaning set forth in the
preamble hereto.
"Trust" has the meaning set forth in the preamble hereto.
"underwriter" means any underwriter of Registrable Securities or
Exchange Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by
Exchanging Dealers; Private Exchange.
(a) Except as otherwise provided herein, the Company and the Trust
shall prepare and, not later than 90 days following the Closing Date, shall file
with the Commission the Exchange Offer Registration Statement with respect to
the Registered Exchange Offer. The Company and the Trust shall use their best
efforts to cause the Exchange Offer Registration Statement be declared effective
under the Act within 120 days of the Closing Date. The Company and the Trust
shall use their best efforts to consummate the Registered Exchange Offer within
150 days of the Closing Date.
(b) Upon the date the Exchange Offer Registration Statement is
declared effective, the Company and the Trust shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of the Act, acquires the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in a public distribution (within the meaning of the Act)
of the Exchange Securities) to trade such Exchange Securities from and after
their receipt without any limitations or
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restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
(c) In connection with the Registered Exchange Offer, the Company and
the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 30
days (or longer if required by applicable law) after the date notice
thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all Registrable Securities
tendered and not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) issue Exchange Securities to each Holder in a principal
amount, stated liquidation preference or number, as the case may be,
equal to the Registrable Securities accepted for exchange and canceled
pursuant to the Registered Exchange Offer; and
(iii) issue Exchange Securities to each Initial Purchaser at its
request in exchange for Registrable Securities acquired by it as part
of the Initial Placement containing terms that are identical to the
Exchange Securities issued to Holders in the Registered Exchange Offer
(except that such Exchange Securities may contain the transfer
restrictions contained in the Registrable Securities for which they
are exchanged) and use best effort to cause the CUSIP Service Bureau
to issue the same CUSIP number for such Exchange Securities as is
issued for the Exchange Securities issued in the Registered Exchange
Offer.
(e) The Company, the Trust and the Initial Purchasers on behalf of
the Holders hereby acknowledge that, in order to effect a Registered Exchange
Offer and to comply with clause (d)(iii) above, (i) the Company will be required
to issue new subordinated debt securities to the Trust in exchange for a like
principal amount of Subordinated Debt Securities and (ii) the Trust will be
required to issue new capital securities in exchange for a like amount of stated
liquidation preference of Capital Securities. The parties hereto acknowledge
that the Guarantee by its express terms covers the Exchange Securities
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corresponding to the Capital Securities as well as such Capital Securities. The
parties hereto further acknowledge that the new subordinated debt securities,
capital securities and guarantee issuable as described in this paragraph, which
collectively constitute the Exchange Securities, shall be identical in all
material respects to the securities they replace, except that (x) such Exchange
Securities issued pursuant to the Exchange Offer shall be registered for sale
under the Act to Holders and (y) the interest rate step-up provisions and the
transfer restrictions in the securities being replaced by the Exchange
Securities will be modified and eliminated, as appropriate, in the Exchange
Securities.
(f) The Initial Purchasers, the Company and the Trust acknowledge
that, pursuant to current interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer may be deemed an "underwriter" within the meaning of the
Act and, therefore, is required to deliver a Prospectus in connection with any
resales of any Exchange Securities received by such Exchanging Dealer pursuant
to the Registered Exchange Offer in exchange for Registrable Securities acquired
for its own account as a result of market-making activities or other trading
activities. Accordingly, the Company and the Trust shall:
(i) include the information set forth in Annex A hereto on the
cover of the Prospectus forming a part of the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of the
Prospectus forming a part of the Exchange Offer Registration Statement
in a section setting forth details of the Exchange Offer, and in Annex
C hereto in the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration
Statement, and such other information with respect to resales of the
Exchange Securities by Exchanging Dealers that the Commission may
require in connection therewith and include the information set forth
in Annex D hereto in the Letter of Transmittal delivered pursuant to
the Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery by Exchanging Dealers
in connection with sales of Exchange Securities received pursuant to
the Registered Exchange Offer, as contemplated by Section 4(i) below.
(g) In the event that applicable law or applicable interpretations of
the staff of the Commission do not permit the Company and the Trust to effect
the Registered Exchange Offer (a "Shelf Registration Event"), the Company and
the Trust may elect, in lieu of the commencement of such Registered Exchange
Offer, to effect a Shelf Registration of the Registrable Securities pursuant to
Section 3 hereof.
3. Shelf Registration.
(i) If, because of any change in law or applicable
interpretations thereof by the staff of the Commission, the Company
and the Trust determine upon the advice of their outside counsel that
they are not permitted to effect the Registered Exchange Offer as
contemplated by Section 2 hereof, (ii) if for any other reason the
Exchange Offer Registration
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Statement is not declared effective by the Commission within 120 days of the
Closing Date, (iii) if any Initial Purchaser so requests with respect to
Registrable Securities held by it following consummation of the Registered
Exchange Offer that are not "freely tradable" Exchange Securities, (iv) if any
Holder that is a broker-dealer, is not an affiliate of the Company or the Trust
and is not eligible to participate in the Registered Exchange Offer so requests
with respect to Registrable Securities held by it following the consummation of
the Registered Exchange Offer that are not "freely tradable" Exchange Securities
(it being understood that, for purposes of this Section 3, (x) the requirement
that an Initial Purchaser deliver a Prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the Act in connection
with sales of Exchange Securities acquired in exchange for such Registrable
Securities shall result in such Exchange Securities being not "freely tradable"
but (y) the requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of Exchange Securities acquired in the Registered Exchange
Offer in exchange for Registrable Securities acquired as a result of market-
making activities or other trading activities shall not result in such Exchange
Securities being not "freely tradable"), the following provisions shall apply:
(a) The Company and the Trust shall, as promptly as practicable, file
with the Commission the Shelf Registration Statement covering resales of the
Registrable Securities or the Exchange Securities, as applicable, by the Holders
from time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement, and use their best
efforts to cause the Shelf Registration Statement to be declared effective under
the Act by the 150th day (or, if a Shelf Registration Event exists on the 150th
day following the Closing Date, by the 180th day) after the Closing Date (or
promptly in the event of a request by an Initial Purchaser); provided that with
respect to Exchange Securities received by an Initial Purchaser in exchange for
Registrable Securities constituting any portion of an unsold allotment, the
Company and the Trust may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Regulation S-K
Items 507 and/or 508, as applicable, in satisfaction of their obligations under
this paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration Statement;
and provided further, that with respect to a Shelf Registration Statement
required pursuant to clause (ii) of the preceding paragraph, the consummation of
a Registered Exchange Offer shall relieve the Company and the Trust of their
obligations under this Section 3(a) but only in respect of their obligations
under such clause (ii).
(b) The Company and the Trust shall each use its best efforts to keep
effective the Shelf Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by Holders for a period
of three years from the date the Shelf Registration Statement is declared
effective by the Commission, or such shorter period that will terminate upon the
earlier of the following: (A) when all the Registrable Securities or Exchange
Securities, as applicable, covered by such Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement, (B) when all the
Subordinated Debt Securities or the Exchange Securities relating to such
Subordinated Debt Securities or
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the Exchange Securities relating to such Subordinated Debt Securities issued to
Holders in respect of Capital Securities or Exchange Securities that had not
been sold pursuant to the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or (C) when in the written opinion of
counsel to the Company and the Trust, all outstanding Registrable Securities or
Exchange Securities held by persons that are not affiliates of the Company or
the Trust may be resold without registration under the Act pursuant to Rule
144(k) under the Act or any successor provision. Furthermore, the Company and
the Trust shall each use its best efforts, upon the effectiveness of the Shelf
Registration Statement, to promptly upon the request of any Holder to take any
action reasonably necessary to register the sale of any Registrable Securities
or Exchange Securities of such Holder and compliance by such Holder with the
terms hereof and to identify such Holder as a selling securityholder, provided
that such Holder provides the Company with all information reasonably necessary
to effect such registration. The Company and the Trust shall be deemed not to
have used their best efforts to keep the Shelf Registration Statement effective
during the requisite period if either the Company or the Trust voluntarily takes
any action that would result in Holders of securities covered thereby not being
able to offer and sell such securities during that period, unless (i) such
action is required by applicable law, or (ii) such action is taken by the
Company in good faith and for valid business reasons (not including avoidance of
the Company's obligations hereunder), including the acquisition or divestiture
of assets, so long as the Company promptly thereafter complies with the
requirements of Section 4(l) hereof, if applicable.
(c) Except as described below, in the event that either (a) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 90th day following the Closing Date, (b) the Exchange Offer
Registration Statement is not declared effective on or prior to the 120th day
following the Closing Date or (c) the Exchange Offer is not consummated or a
Shelf Registration Statement with respect to the Registrable Securities is not
declared effective on or prior to the 150th day following the Closing Date,
interest will accrue (in addition to the stated interest on the Registrable
Securities) from and including the next day following each of (i) such 90-day
period in the case of clause (a) above, (ii) such 120-day period in the case of
clause (b) above, and (iii) such 150-day period in the case of clause (c) above.
In each case such additional interest (the "Special Payment") will be payable in
cash semiannually in arrears on the first day of February, May, August and
November (each an "Interest Payment Date"), at a rate per annum equal to 0.25%
of the principal amount or liquidation amount, as applicable, of the Registrable
Securities. The aggregate amount of Special Payment payable pursuant to the
above provisions will in no event exceed 0.75% per annum of the principal amount
or the liquidation amount, as applicable, of the Registrable Securities.
(d) If a Shelf Registration Event shall exist on or before the 90th
day following the Closing Date, then clauses (a) and (i) of the preceding
paragraph shall not apply. To the extent that such a Shelf Registration Event
exists and the Company has filed a Shelf Registration Statement covering resales
of the Registrable Securities by the 120th day following the Closing Date, then
clauses (b) and (ii) of the preceding paragraph shall not apply, and to the
extent a Shelf Registration Event exists on the 150th day following the
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Closing Date, the period specified in clauses (c) and (iii) of the preceding
paragraph will be 180 days. Upon (x) the filing of the Exchange Offer
Registration Statement or the occurrence of a Shelf Registration Event, if
applicable, as described above, after the 90-day period described in clause (a)
of the preceding paragraph, (y) the effectiveness of the Exchange Offer
Registration Statement (if applicable) (or the filing of a Shelf Registration
Statement, in the event of a Shelf Registration Event, if applicable, as
described above) after the 120-day period described in clause (b) of the
preceding paragraph or (z) the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement after the 150-day period
described in clause (c) of the preceding paragraph (or the effectiveness of a
Shelf Registration Statement after the 180-day period specified above, in the
event of a Shelf Registration Event, if applicable, as described above), the
Special Payment payable on the Registrable Securities from the date of such
filing, effectiveness or consummation, as the case may be, will cease to accrue
and all accrued and unpaid Special Payments as of the occurrence of (x), (y) or
(z) shall be paid to the holders of the Registrable Securities on the next
Interest Payment Date.
(e) In the event that a Shelf Registration Statement is declared
effective hereunder, if the Company or the Trust fails to keep such Shelf
Registration Statement continuously effective for the period required hereby,
then from the next day following such time as the Shelf Registration Statement
is no longer effective until the earlier of (i) the date that the Shelf
Registration Statement is again deemed effective, (ii) the date that is the
third anniversary of the date of the original issuance of the Registrable
Securities or (iii) the date as of which all of the Registrable Securities
covered by the Shelf Registration Statement are sold pursuant thereto or may
sold without registration pursuant to Rule 144 under the Securities Act, Special
Payments shall accrue at a rate per annum equal to 0.25% of the principal amount
or liquidation amount, as applicable, of the Registrable Securities and shall be
payable in cash, in arrears on each Interest Payment Date; it being understood
that after the Registered Exchange Offer has been consummated, no Special
Payments shall accrue in respect of Registrable Securities (to be increased to
0.50% when the Shelf Registration Statement is no longer effective for 30 days
or more), without prejudice to any other claim that any Holder may have for any
failure by the Company to obtain or maintain continuous effectiveness of the
Exchange Offer Registration Statement or a Shelf Registration Statement in
accordance with the terms of this Agreement.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company and the Trust shall furnish to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use their best
efforts to reflect in each such document, when so filed with the Commission,
such comments as the Initial Purchasers reasonably may propose.
(b) The Company and the Trust shall ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any
9
amendment or supplement thereto (and each document incorporated therein by
reference) complies in all material respects with the Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) any Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any Prospectus forming part of any Registration Statement, and any
amendment or supplement to such Prospectus, does not as of the date thereof
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
(c)
(1) The Company and the Trust shall advise the Initial Purchasers
and, in the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, if requested by the Initial Purchasers or any such Holder,
confirm such advice in writing:
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company and the Trust shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in writing to the Company a
telephone or facsimile number and address for notices, and, if requested by the
Initial Purchasers or any such Holder or Exchanging Dealer, confirm such advice
in writing of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) the receipt by the Company or the Trust of any
notification with respect to the suspension of the qualification of
the securities included therein for sale in any jurisdiction or the
initiation or overtly threatening of any proceeding for such purpose;
(iii) the happening of any event that requires the making of
any changes in the Registration Statement or the Prospectus so that,
as of such date, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes
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have been made); and
(iv) the Company's or the Trust's determination that a post-
effective amendment to a Registration Statement would be appropriate.
(d) The Company and the Trust shall use their best efforts to prevent
the issuance, and if issued to obtain the withdrawal, of any order suspending
the effectiveness of any Registration Statement at the earliest possible time.
(e) On or prior to the time that an Exchange Offer Registration
Statement or Shelf Registration Statement is first effective under the
Securities Act, the Company shall have caused the Capital Securities or Exchange
Securities corresponding to such Capital Securities, respectively, to be duly
authorized for listing, subject in the case of an Exchange Offer Registration
Statement to official notice of issuance, on the New York Stock Exchange as a
fixed income security (or, if such listing is unavailable, as an equity
security) and thereafter shall maintain such listing; or, in the alternative,
the Company shall have taken such action satisfactory to the Initial Purchasers
as to have caused the Capital Securities or Exchange Securities corresponding to
such Capital Securities, respectively, to be freely tradable to the same extent
as if duly authorized for listing on the New York Stock Exchange as described
above.
(f) The Company and the Trust shall furnish to each Holder of
securities included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits filed therewith
(including those incorporated by reference).
(g) The Company and the Trust shall, during the Shelf Registration
Period, deliver to each Holder of securities included within the coverage of any
Shelf Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company and the Trust each consent to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders of
securities in connection with the offering and sale of the securities covered by
the Prospectus or any amendment or supplement thereto.
(h) The Company and the Trust shall furnish to each Exchanging Dealer
that so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
filed therewith (including those incorporated by reference).
(i) The Company and the Trust shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without charge,
as many copies of the final Prospectus included in such Exchange Offer
Registration Statement and
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any amendment or supplement thereto as such Exchanging Dealer may reasonably
request for delivery by such Exchanging Dealer in connection with a sale of
Exchange Securities received by it pursuant to the Registered Exchange Offer;
and the Company and the Trust each consent to the use of the Prospectus or any
amendment or supplement thereto by any such Exchanging Dealer, as aforesaid.
(j) Prior to the Registered Exchange Offer or any other offering of
securities pursuant to any Registration Statement, the Company and the Trust
shall register or qualify or cooperate with the Holders of securities included
therein and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holders reasonably request in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the securities covered by such
Registration Statement; provided, however, that in no event shall the Company or
the Trust be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it
to general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(k) The Company and the Trust shall cooperate with the Holders of
Registrable Securities or Exchange Securities, as the case may be, to facilitate
the timely preparation and delivery within the times required by normal-way
settlement of certificates representing securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to sales of securities
pursuant to such Registration Statement.
(l) If (a) Shelf Registration is filed pursuant to Section 3 hereof,
or (b) a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Act by any
Exchanging Dealer who seeks to sell Registrable Securities or Exchange
Securities during the Shelf Offer Registration Period or the Exchange Offer
Registration Period, as the case may be, upon the occurrence of any event
contemplated by paragraph 4(c)(2)(iii) or 4(c)(2)(iv) hereof, the Company and
the Trust as promptly as practicable, prepare and file with the Commission, at
the sole expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered by an Exchanging
Dealer, any such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(m) Not later than the effective date of any such Registration
Statement hereunder, the Company and the Trust shall provide a CUSIP number for
the Capital Securities or the Exchange Securities corresponding to the Capital
Securities, as the case may be, registered under such Registration Statement.
In the event of and at the time of any
12
distribution of the Subordinated Debt Securities to Holders, the Company and the
Trust shall provide a CUSIP number for the Subordinated Debt Securities or the
Exchange Securities corresponding to the Subordinated Debt Securities and
provide the applicable trustee with certificates for such securities, in a form
eligible for deposit with DTC. The Company and the Trust shall use their
reasonable best efforts to cause the CUSIP Service Bureau to issue the same
CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, delivered pursuant to a Registration Statement as was originally issued
for the Registrable Securities.
(n) The Company and the Trust shall use their best efforts to comply
with all applicable rules and regulations of the Commission to the extent and so
long as they are applicable to the Registered Exchange Offer, the Exchange Offer
Registration Statement or the Shelf Registration Statement and shall make
generally available to their security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act.
(o) The Company and the Trust shall cause the indenture relating to
the Subordinated Debt Securities, the Capital Securities Guarantee and the
declaration of trust of the Trust pursuant to which the terms of the Capital
Securities are established, or any corresponding documents in respect of the
Exchange Securities, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner.
(p) The Company and the Trust shall, if requested, promptly
incorporate in a Prospectus supplement or post effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters reasonably
agree should be included therein and shall make all required filings of such
Prospectus supplement or post effective amendment as soon as practicable after
they are notified of the matters to be incorporated in such Prospectus
supplement or post effective amendment.
(q) In the case of any Shelf Registration Statement, the Company and
the Trust shall enter into such agreements (including an underwriting agreement)
and take all other appropriate actions, if any, in order to facilitate the
registration or the disposition of the Registrable Securities or the Exchange
Securities, as the case may be, to be registered thereunder.
(r) In connection therewith, if an underwriting agreement is entered
into, the Company and the Trust shall cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in Section 6
(or such other provisions and procedures acceptable to the Managing
Underwriters, if any), with respect to all parties to be indemnified pursuant to
Section 6.
(s) In the case of any underwritten offering under a Shelf
Registration Statement or at the request of an Initial Purchaser to the extent
that an Initial Purchaser has Registrable Securities or Exchange Securities
eligible for resale thereunder, the Company and the Trust shall (i) make
reasonably available for inspection by a representative of the Holders
13
of a majority of the securities to be registered thereunder, any Initial
Purchaser (if applicable) and any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant or other
agent retained by any such Holders, Initial Purchaser or underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company, its subsidiaries and the Trust; (ii) cause the
Company's officers, directors and employees and the trustees of the Trust to
supply all relevant information reasonably requested by the representative of
the Holders, the Initial Purchaser (if applicable) or any such underwriter,
attorney, accountant or agent in connection with any such Registration Statement
as is customary for similar due diligence examinations; provided, however, that
any information that is designated in writing by the Company and the Trust, in
good faith, as confidential at the time of delivery of such information shall be
kept confidential by the Holders, the Initial Purchaser (if applicable) or any
such underwriter, attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without an
accompanying obligation of confidentiality; (iii) make such representations and
warranties to the Holders of securities registered thereunder, the Initial
Purchaser (if applicable) and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary underwritten
offerings and covering matters including , but not limited to, those set forth
in the Purchase Agreement; (iv) obtain opinions of counsel to the Company and
the Trust (who may be the general counsel of the Company) and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) in customary form and scope
addressed to each selling Holder, Initial Purchaser (if applicable) and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
reasonably requested by such Holders, Initial Purchasers (if applicable) and
underwriters; (v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and if necessary, any
other independent certified accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each selling Holder of securities registered
thereunder, the Initial Purchaser (if applicable) and the underwriters, if any,
and covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings; and (vi) deliver such
documents and certificates as may be reasonably requested by any such Holders,
the Initial Purchaser (if applicable) or the Managing Underwriters, if any,
including those to evidence compliance with Section 4(1) and with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company and the Trust. The foregoing actions set forth in clauses
(iii), (iv), (v) and (vi) of this Section 4(s) shall be performed at (A) the
effectiveness of such Registration Statement and each post effective amendment
thereto and (B) each closing under any underwriting or similar agreement as and
to the extent required thereunder.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable
14
fees and disbursements of one firm of counsel designated by the majority of the
Holders of the Registrable Securities or Exchange Securities, as the case may
be, covered by such Shelf Registration Statement to act as counsel for the
Holders in connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Initial Purchasers for the reasonable
fees and disbursements of one counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless the
Trust, each Holder of securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(i) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (including all documents
incorporated by referenced therein) as originally filed or in any amendment
thereof, or in any preliminary prospectus or Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(a) The Company also agrees to indemnify or contribute to Losses (as
defined herein) of, as provided in Section 6(d), any underwriters of Securities
registered under a Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Initial Purchasers and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement, as provided in Section 4(q)
hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(i) hereof, each Exchanging Dealer) severally agrees
to indemnify and hold harmless the Company, the Trust, each of their directors,
trustees, administrators, officers and each person who controls the Company or
the Trust within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each such Holder,
15
but only with reference to written information relating to such Holder furnished
to the Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 or notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent the
indemnifying party did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of one
such separate counsel (in addition to local counsel) designated by the
indemnified parties if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims,
16
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such Losses; provided, however,
that in no case shall any Initial Purchaser or any subsequent Holder of any
Registrable Security or Exchange Security be responsible, in the aggregate, for
any amount in excess of the purchase discount or commission applicable to such
security, or in the case of an Exchange Security, applicable to the Registrable
Security which was exchangeable into such Exchange Security, as set forth on the
cover page of the Final Offering Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the sum of (x)
the total net proceeds from the Initial Placement (before deducting expenses) as
set forth on the cover page of the Final Offering Memorandum and (y) the total
amount of additional interest which the Company was not required to pay as a
result of registering the securities covered by the Registration Statement which
resulted in such Losses. Benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions as set forth
on the cover page of the Final Offering Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving Registrable
Securities or Exchange Securities, as applicable, registered under the Act.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
and the Trust within the meaning of either the Act or the Exchange Act, each
officer of the Company or trustee of the Trust who shall have signed the
Registration Statement and each director of the Company or trustee of the Trust
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
17
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Company or the Trust any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Miscellaneous.
--------------
(a) No Inconsistent Agreements. The Company and the Trust have not,
as of the date hereof, entered into, nor shall they, on or after the date
hereof, enter into, any agreement with respect to their securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and the Trust have
obtained the written consent of the Holders of at least a majority in
liquidation amount of the Capital Securities then outstanding (or, after the
consummation of any Exchange Offer in accordance with Section 2 hereof, of
Exchange Securities then outstanding); provided that, with respect to any matter
that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by the
majority of such affected Holders, determined on the basis of securities being
sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company;
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at their
addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers, the Company or the Trust by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
18
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company and the Trust thereto, subsequent Holders of Registrable Securities
and/or Exchange Securities. The Company and the Trust hereby agree to extend
the benefits of this Agreement to any Holder of Registrable Securities and/or
Exchange Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified number, or percentage of principal amount or
liquidation amount, as the case may be, of, Registrable Securities or Exchange
Securities is required hereunder, Registrable Securities or Exchange Securities,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Registrable Securities or Exchange Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Registrable Securities or Exchange Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
19
Please confirm your agreement by having your authorized officer sign a
copy of this Registration Agreement in the space set forth below and returning
the signed copy to us.
Very truly yours,
MERCANTILE BANCORPORATION INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
Treasurer
MERCANTILE CAPITAL TRUST I
By: MERCANTILE BANCORPORATION INC.,
as Sponsor
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and
Treasurer
Accepted:
SALOMON BROTHERS INC
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Date: January 29, 1997
20
ANNEX A
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission"), as set forth in no-action letters issued to third
parties, the Company and the Trust believe that the Exchange Securities issued
pursuant to the Exchange Offer may be offered for resale, resold or otherwise
transferred by holders thereof (other than any holder that is an "affiliate" of
the Company or the Trust as defined under Rule 405 of the Securities Act),
provided that such Exchange Securities are acquired in the ordinary course of
such holders' business and such holders are not engaged in, and do not intend to
engage in, a distribution of such Exchange Securities and have no arrangement or
understanding with any person to participate in the distribution of such
Exchange Securities. However, the staff of the Commission has not considered
the Exchange Offer in the context of a no-action letter, and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offer as in such other circumstances. By tendering
the Registrable Securities in exchange for Exchange Securities, each holder,
other than a broker-dealer, will represent to the Company and the Trust that:
(i) it is not an affiliate of the Company or the Trust (as defined under Rule
405 of the Securities Act); (ii) any Exchange Securities to be received by it
were acquired in the course of its ordinary business; and (iii) it is not
engaged in, and does not intend to engage in, a distribution of the Exchange
Securities and has no arrangement or understanding to participate in a
distribution of the Exchange Securities.
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Registrable
Securities where such Registrable Securities were acquired by such broker-dealer
as a result of market-making activities or other trading activities. The Company
and the Trust have agreed that, starting on the date on which the Exchange Offer
is consummated and ending on the close of business one year after such date,
they will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
21
ANNEX B
Based on interpretations by the staff of the Commission as set forth in no-
action letters issued to third parties, the Company and the Trust believe that
holders of Registrable Securities (other than any holder that is an "affiliate"
of the Company or the Trust as defined under Rule 405 of the Securities Act) who
exchange their Registrable Securities for Exchange Securities pursuant to the
Exchange Offer may offer such Exchange Securities for resale, resell such
Exchange Securities and otherwise transfer such Exchange Securities without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such Exchange Securities are acquired in the
ordinary course of such holders' business and such holders are not engaged in,
and do not intend to engage in, a distribution of such Exchange Securities and
have no arrangement or understanding with any person to participate in the
distribution of such Exchange Securities. However, the staff of the Commission
has not considered the Exchange Offer in the context of a no-action letter, and
there can be no assurance that the staff of the Commission would make a similar
determination with respect to the Exchange Offer. Each broker-dealer that
receives Exchange Securities for its own account in exchange for Registrable
Securities, where such Registrable Securities were acquired by such broker-
dealer as a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities. See "Plan of Distribution."
22
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Registrable Securities where such Registrable Securities were
acquired as a result of market-making activities or other trading activities.
The Company and the Trust have agreed that, starting on the date on which the
Exchange Offer is consummated and ending on the close of business one year after
such date, they will make this Prospectus, as amended or supplemented, available
to any broker-dealer for use in connection with any such resale. In addition,
until________, 199__, all dealers effecting transactions in the Exchange
Securities may be required to deliver a prospectus.
The Company and the Trust will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by broker-
dealers for their own account pursuant to the Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market or the
New York Stock Exchange, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such broker-
dealer and/or the purchasers of any such Exchange Securities. Any broker-dealer
that resells Exchange Securities that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the date on which the Exchange Offer is
consummated, the Company and the Trust will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company and the Trust have agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the Holders of the Registrable
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the Holders of the Registrable Securities (including any broker-
dealers) against certain liabilities, including liabilities under the Securities
Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
23
ANNEX D
Rider A
-------
___ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: ___________________________________
Address: ___________________________________
___________________________________
Rider B
The undersigned acknowledges that this Exchange Offer is being made by
the Company and the Trust based upon the Company's and Trust's understanding of
an interpretation by the staff of the Securities and Exchange Commission (the
"Commission") as set forth in no-action letters issued to third parties, that
the Exchange Securities issued in exchange for Registrable Securities by holders
thereof (other than to holders that are "affiliates" of the Company or the Trust
within the meaning of Rule 405 under the Securities Act), may be so issued
without compliance with the registration and prospectus delivery provisions of
the Securities Act, provided that: (i) such holders are not affiliates of the
Company or the Trust within the meaning of Rule 405 under the Securities Act;
(ii) such Exchange Securities are acquired in the ordinary course of such
holders' business; and (iii) such holders are not engaged in, and do not intend
to engage in, a distribution of such Exchange Securities and have no arrangement
or understanding with any person to participate in the distribution of such
Exchange Securities. However, the staff of the Commission has not considered
the Exchange Offer in the context of a no-action letter and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offer as in other circumstances. If a holder of
Registrable Securities is an affiliate of the Company, or is engaged in or
intends to engage in a distribution of the Exchange Securities or has any
arrangement or understanding with respect to the distribution of the Exchange
Securities to be acquired pursuant to the Exchange Offer, such holder could not
rely on the applicable interpretations of the staff of the Commission and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any secondary resale transaction. If the
undersigned is a broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities, it represents that the
Registrable Securities to be exchanged for Exchange Securities were acquired by
it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
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