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EXHIBIT 4.7
Registration Rights Agreement
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EXHIBIT 4.7
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REGISTRATION RIGHTS AGREEMENT
Dated March 10, 1997
among
ML BANCORP, INC.
ML CAPITAL TRUST I
and
SANDLER X'XXXXX & PARTNERS, X.X.
XXXXXX XXXXXXXXXX XXXXX INC.
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of March 10, 1997 among ML BANCORP, INC., a
Pennsylvania corporation (the "Company"), ML CAPITAL TRUST I, a business trust
formed under the laws of the state of Delaware (the "Trust"), and SANDLER
X'XXXXX & PARTNERS, L.P. ("Sandler X'Xxxxx") and XXXXXX XXXXXXXXXX XXXXX INC.
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated March 4, 1997 (the "Purchase Agreement"), among the Company, as issuer of
the Series A 9.875% Junior Subordinated Deferrable Interest Debentures due
March 1, 2027 (the "Subordinated Debentures"), the Trust and the Initial
Purchasers, which provides for, among other things, the sale by the Trust to
the Initial Purchasers of 50,000 of the Trust's Series A 9.875% 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 Initial Purchasers to enter into the Purchase Agreement,
the Company and the Trust have agreed to provide to the Initial Purchasers and
their direct and indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following
meanings:
"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.
"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 City of New York or in Villanova,
Pennsylvania are authorized or required by law or executive order to close.
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"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Declaration" or "Declaration of Trust" shall mean the Amended and
Restated Declaration of Trust, dated as of March 10, 1997, by the trustees
named therein and the Company, as sponsor.
"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 (other than
Private Exchange Securities) for a like principal amount of Exchange Securities
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Securities" shall mean (i) with respect to the
Subordinated Debentures, the Series B 9.875% Junior Subordinated Deferrable
Interest Debentures due March 1, 2027 (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 9.875% Capital Securities, liquidation amount $1,000 per
Capital Security (the "Exchange Capital Securities") which will have terms
substantially identical to the
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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 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 Initial Purchasers, 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 dated as of March 10, 1997 between the
Company, as issuer, and The Bank of New York, as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n)
hereof.
"Issue Date" shall mean March 10, 1997, the date of original
issuance of the Securities.
"Liquidated Damages" shall have the meaning set forth in Section
2(e) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section
2(a) hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Regis-
tration Statement, including any preliminary prospectus, and any
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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 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 have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
hereof.
"Registrable Securities" shall mean the Securities and, if issued,
the Private Exchange Securities; provided, however, that Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities or
Private Exchange Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities or
Private Exchange Securities, as the case may be, shall have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or are eligible to be sold without
restriction as contemplated by Rule 144(k), (iii) such Securities or Private
Exchange Securities, as the case may be, shall have ceased to be outstanding or
(iv) with respect to the Securities, such Securities shall have been exchanged
for Exchange Securities upon consummation of the Exchange Offer and are
thereafter freely tradeable by the holder thereof (other than an affiliate of
the Company).
"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 any
underwriters or Holders 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 Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing,
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printing and distributing any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance
with this Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of the independent certified
public accountants of the Company, including the expenses of any "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
fees and expenses of the Trustee, and any exchange agent or custodian, (vii)
all fees and expenses incurred in connection with the listing, if any, of any
of the 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.
"Securities" shall have the meaning set forth in the preamble
to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Trust pursuant to the provisions of Section
2(b) hereof which covers all of the Regis- trable Securities or all of the
Private Exchange Securities, as the case may be, on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
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Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"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 150
days after the Issue Date an Exchange Offer Registration Statement 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 180 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 is not an affiliate of the Company within
the meaning of Rule 405 under the Securities Act and is not a broker-dealer
tendering Registrable Securities acquired directly from the Company for its own
account, acquires the Exchange Securities in the ordinary course of such
Holder's business and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing the Exchange
Securities) to transfer such Exchange Securities from and after their receipt
without any limitations or restrictions under the Securities Act and under
state securities or blue sky laws (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
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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 Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all material respects with all applicable
laws relating to the Exchange Offer.
If any Initial Purchaser determines upon advice of its
outside counsel that it is not eligible to participate in the Exchange Offer
with respect to the exchange of Securities constituting any portion of an
unsold allotment in the initial distribution, as soon as practicable upon
receipt by the Company and the Trust of a written request from such Initial
Purchaser, the Company and the Trust, as applicable, shall issue and deliver to
such Initial Purchaser in exchange (the "Private Exchange") for the Securities
held by such Initial Purchaser, a like liquidation amount of Capital Securities
of the Trust or, in the event the Trust is liquidated and Subordinated
Debentures are distributed, a like principal amount of the Subordinated
Debentures of the Company, together with the Exchange Guarantee, in each case
that are identical (except that such securities may bear a customary legend
with respect to restrictions on transfer pursuant to the Securities Act) to the
Exchange Securities (the "Private Exchange Securities") and which are issued
pursuant to the Indenture, the Declaration or the Guarantee (which provides
that the Exchange Securities will not be subject to the transfer restrictions
set forth in the Indenture or the Declaration, as applicable (other than
requiring minimum transfers thereof to be in blocks of $100,000 aggregate
principal amount or liquidation amount, as the case may be), and that the
Exchange Securities, the Private Exchange Securities and the Securities will
vote and consent together on all matters as one class and that none of the
Exchange Securities, the Private Exchange Securities or the Securities will
have the right to vote or consent as a separate class on any matter).
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The Private Exchange Securities shall be of the same series as the Exchange
Securities and the Company and the Trust will seek to cause the CUSIP Service
Bureau to issue the same CUSIP Numbers for the Private Exchange Securities as
for the Exchange Securities issued pursuant to the Exchange Offer. If requested
by the Company, each of the Initial Purchasers will, within a reasonable time
in advance of the Company's filing of an Exchange Offer Registration Statement
hereunder, advise the Company as to the number of Registrable Securities held
by it which constitute an unsold allotment in the initial distribution.
As soon as practicable after the close of the Exchange
Offer and, if applicable, the Private Exchange, 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 or the Private
Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee
for cancellation all Securities or portions thereof so accepted for exchange by
the Company; and
(iii) issue, and cause the applicable Trustee under the Indenture,
the Declaration or the Guarantee, as applicable, to promptly authenticate and
deliver to each Holder, new Exchange Securities or Private Exchange Securities,
as applicable, equal in principal amount to the principal amount of the
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 and Private Exchange Security issued
pursuant to the Exchange Offer and in the Private Exchange 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 interpretations 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
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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 Initial Purchasers, after consultation
with the applicable Trustees, of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Securities that are
Private Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company and the Trust shall have no further obligation
to register the Registrable Securities (other than Private Exchange Securities)
held by any Holder pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the
Company, the Trust or the Majority Holders reasonably determine, after
conferring with counsel, that the Exchange Offer Registration provided in
Section 2(a) above is not available under applicable laws 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
that 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, (iii)
the Exchange Offer Registration Statement is not declared effective within 180
days of the Issue Date or (iv) upon the request of any Initial Purchaser with
respect to any Regis- trable Securities held by it, if such Initial Purchaser
is not permitted, in the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
pursuant to applicable law or applicable interpretations of the staff of the
SEC, to participate in the Exchange Offer and thereby receive securities that
are freely tradeable without restriction under the Securities Act and
applicable blue sky or state securities laws (any of the events specified in
(i)-(iv) being a "Shelf Registration Event" and the date of occurrence thereof,
the "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 practi-
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cable after such Shelf Registration Event Date, as the case may be, and, in any
event, within 45 days after such Shelf Registration Event Date (provided that
in no event shall such date be earlier than 75 days after the Issue Date), a
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 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 Shelf Registration pursuant to this
Agreement unless and until such Holder agrees in writing to be bound by all of
the provisions of this Agreement applicable to such Holder and furnishes to the
Company and the 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 Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in any Shelf
Registration Statement or Prospectus included therein. Each Holder as to which
any Shelf Registration is being effected agrees to furnish to the Company and
the 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 Shelf Registration Statement continuously effective
and usable for resales for (a) the Rule 144(k) Period in the case of a Shelf
Registration Statement filed pursuant to Section 2(b)(i), (ii) or (iii) or (b)
180 days in the case of a Shelf Registration Statement filed pursuant to
Section 2(b)(iv) (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 Shelf Registration
Statement have been sold pursuant to the 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 Shelf Registration. The Company and the Trust will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder a
reasonable number of copies of the Prospectus which is a part of the Shelf
Registration Statement and notify each such Holder when the Shelf Registration
has become effective. The Company and the Trust further agree, if necessary, to
supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by
any other rules and regulations thereunder for shelf registrations, and the
Company and the 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.
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(c) Expenses. The Company, as issuer of the Subordi-
nated 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 Initial Purchasers for the reasonable fees and disbursements
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial
Purchasers, incurred in connection with the Exchange Offer and, if applicable,
the Private Exchange, or any one other counsel designated in writing by the
Majority Holders to act as counsel for the Holders of the Regis- trable
Securities in connection with a Shelf Registration Statement, which other
counsel shall be reasonably satisfactory to the Company. Except as provided
herein, each Holder shall pay all expenses of its counsel 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 Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) 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 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 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 laws and regulations
or currently prevailing interpretations of the staff of the SEC.
(e) Liquidated Damages. In the event that (i) neither
the Exchange Offer Registration Statement is filed with the SEC on or prior to
the 150th day after the Issue Date nor a Shelf Registration Statement is filed
with the SEC on or prior to the 45th day after the Shelf Registration Event
Date in respect of a 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 after the applicable required filing date, liquidated damages ("Liquidated
Damages") shall accrue on the principal amount of the Subordinated Debentures,
and
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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) neither the Exchange Offer Registration Statement nor a Shelf
Registration Statement is declared effective by the SEC on or prior to the
180th day after the Issue Date (in the case of an Exchange Offer Registration
Statement) or on or prior to the later of (A) the 30th day after the date such
Shelf Registration Statement was required to be filed and (B) the 180th date
after the Issue Date (in the case of a Shelf Registration Statement in respect
of a Shelf Registration Event attributable to any of the events set forth in
Sections 2(b)(i), (ii) and (iii)), 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 31st day after the date such Shelf Registration Statement was
required to be filed and (B) the 181st day after the Issue Date (in the case of
a Shelf Registration Statement in respect of a Shelf Registration Event
attributable to any of the events set forth in Sections 2(b)(i), (ii) and
(iii)), 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;
or
(iii) (A) the Trust has not exchanged Exchange Capital Securities or
the Company has not exchanged Exchange Guarantees or Exchange Subordinated
Debenture 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 Shelf
Registration Statement in respect of a 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 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
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
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the filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of clause (i) above), (2) upon the effectiveness of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in the
case of clause (ii) above), or (3) upon the exchange of Exchange Capital
Securities, Exchange Guarantees and Exchange Debentures for all Capital
Securities, Guarantees and Subordinated Debentures tendered (in the case of
clause (iii)(A) above), or at such time as the 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 March 1 and September 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 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. Notwith-
standing 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 Regis-
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tration Statements pursuant to Sections 2(a) and 2(b) hereof, each of 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 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 Registration
Statement to become effective and remain effective (and, in the case
of a 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 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
Effective-
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ness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by
the selling Holders thereof described in this Agreement (including
sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf Registration
Statement, at least three Business Days prior to filing, that a
Shelf Registration Statement with respect to the Registrable
Securities is being filed and advising such Holder that the
distribution of Registrable Securities will be made in accordance
with the method selected by the Majority Holders; and (ii) furnish
to each Holder of Registrable Securities included in the Shelf
Registration Statement and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus,
and any amendment or supplement thereto and such other documents as
such Holder or underwriter may reasonably request, in order to
facilitate the public sale or other disposition of the Registrable
Securities; and (iii) consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
Registrable Securities included in the Shelf Registration Statement
in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto;
(d) in the case of a 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 Registration
Statement is declared effective by the SEC as any Holder of
Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities
shall reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and
underwriter to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by such Holder; provided,
however, that the Company and the Trust shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 3(d), (ii) file any general consent to service of
process in any jurisdiction where it would not otherwise be subject
to such service of process or (iii) subject itself to taxation in
any such jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if
Participating Broker-Dealers from whom the Company or the Trust has
received prior written notice that they will be
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18
utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof are
seeking to sell Exchange Securities and are required to deliver
Prospectuses, notify each Holder of Registrable Securities, or such
Participating Broker-Dealers, as the case may be, their counsel and
the managing underwriters, if any, promptly and promptly confirm
such notice in writing (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to a
Registration Statement or Prospectus or for additional information
after the 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 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 Shelf Registration, if, between the effective date of a
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, if any cease
to be true and correct in all material respects, and (v) of the
happening of any event or the failure of any event to occur or the
discovery of any facts or otherwise, during the Effectiveness
Period, which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect
or which causes such Registration Statement or Prospectus to omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and (vi) the Company and the Trust's reasonable
determination that a post-effective amendment to the Registration
Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration
Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage of
such Shelf Registration Statement, without charge, one conformed
copy of each Registration Statement relating to such Shelf
Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate
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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 Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi)
hereof, use its 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 reasonable 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;
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20
(l) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten offerings and take all such other appropriate actions
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 Regis- trable Securities in order to expedite or
facilitate the registration or the disposition of the Registrable
Securities; provided, that the Company and the Trust shall not be
required to enter into any such agreement more than twice with
respect to all of the Registrable Securities and may delay entering
into such agreement until the consummation of any underwritten
public offering which the Company shall have undertaken;
(m) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x)
any Initial Purchaser, in the case where such Initial Purchaser
holds Securities acquired by it as part of its initial allotment and
(y) 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
the 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 (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
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21
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, provide indemnification pursuant to
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) with respect to all parties to
be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders). The above shall
be done at each closing under such underwriting agreement, or as and
to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to
be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, make reasonably available for inspection by any
selling Holder of such Registrable Securities 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 Shelf Registration, 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
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22
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 in all material respects 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;
(p) upon consummation of an Exchange Offer or a Private
Exchange, if requested by a Trustee, obtain an opinion of counsel to
the Company addressed to the Trustee for the benefit of all Holders
of Registrable Securities participating in the Exchange Offer or the
Private Exchange, as the case may be, to the effect that (i) the
Company and the Trust, as the case requires, has duly authorized,
executed and delivered the Exchange Securities and Private Exchange
Securities, and (ii) each of the Exchange Securities or the Private
Exchange Securities, as the case may be, 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 or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by
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23
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 or the Private Exchange
Securities, as the case may be, 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 or the Private Exchange Securities, as the case may be;
in no event shall such Registrable Securities be marked as paid or
otherwise satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to
be made with the NASD;
(s) use its reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to the Initial Purchasers or another
representative of the Participating Broker-Dealers, and which shall
contain a summary statement of the positions taken or policies made
by the staff of the 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
Initial Purchasers or such other representative, represent the
prevailing views of the staff of the SEC, including a statement that
any such Participating 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
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24
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 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 Initial
Purchasers or to another representative of the Participating
Broker-Dealers, if requested by any Initial Purchaser or such other
representative of Participating Broker-Dealers, who hold at least
10% aggregate principal or liquidation amount, as the case may be,
of the Registrable Securities covered by the Exchange Offer
Registration Statement on behalf of the Participating Broker-Dealers
upon consummation of the Exchange Offer (i) an opinion of counsel in
form and substance reasonably satisfactory to the Initial Purchasers
or such other representative of the Participating Broker-Dealers,
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25
covering the matters customarily covered in opinions requested in
connection with Exchange Offer Registration Statements and such
other matters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officers'
certificate containing certifications substantially similar to those
set forth in Section 5(f) of the Purchase Agreement and such
additional certifications as are customarily delivered in a public
offering of debt securities and (iii) as well as upon the
effectiveness of the Exchange Offer Registration Statement, a
comfort letter, in each case, in customary form if permitted by
Statement on Auditing Standards No. 72.
The Company or the 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 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 Xxxxxxxx-
00
00
tion 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 connec-
tion with any Registration Statement, the Company and the Trust shall, jointly
and severally, indemnify and hold harmless the Initial Purchasers, each Holder,
each underwriter who participates in an offering of the Registrable Securities,
each Participating Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each of their respective directors, officers, employees
and agents, as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred,
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any
amendment thereto) covering Registrable Securities or Exchange
Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained
in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(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
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governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) of this
Section 4(a);
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished in writing to the
Company or the 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
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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
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 Shelf Registration
Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have under this Section 4, except to the extent that it is materially
prejudiced by such failure. An indemnifying party may participate at its own
expense in the defense of such action, 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 idemnified 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),
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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 contri-
bution 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 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.
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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 Regis-
trable Securities covered by the Shelf Registration Statement who desire to do
so may sell the securities covered by such Shelf Registration 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 use its reasonable best efforts
to file the reports required to be filed by it under the Securities Act and
Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the 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
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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 no
amendment, modification or supplement or waiver or consent to the departure
with respect to the provisions of Section 4 hereof shall be effective as
against any Holder of Registrable Securities unless consented to in writing by
such Holder of Registrable Securities. Notwithstanding the foregoing sentence,
(i) this Agreement may be amended, without the consent of any Holder of
Registrable Securities, by written agreement signed by the Company, the Trust
and Sandler X'Xxxxx, to cure any ambiguity, correct or supplement any provision
of this Agreement that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters or questions
arising under this Agreement which shall not be inconsistent with other
provisions of this Agreement, (ii) this Agreement may be amended, modified or
supplemented, and waivers and consents to departures from the provisions hereof
may be given, by written agreement signed by the Company, the Trust and Sandler
X'Xxxxx to the extent that any such amendment, modification, supplement, waiver
or consent is, in their reasonable judgment, necessary or appropriate to comply
with applicable law (including any interpretation of the Staff of the SEC) or
any change therein and (iii) to the extent any provision of this Agreement
relates to any Initial Purchaser, such provision may be amended, modified or
supplemented, and waivers or consents to departures from such provisions may be
given, by written agreement signed by or on behalf of each such Initial
Purchaser, the Company and the Trust. Each Holder of any Registrable Securities
then outstanding shall be bound by any amendment or waiver effected pursuant to
this Section 7(c), whether or not any notice, writing or marking indicating
such amendment or waiver appears on such Registrable Securities or is delivered
to such Holder.
(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
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of this Section 7(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company or the Trust, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt is acknowledged, if
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 communi-
cations shall be concurrently delivered by the Person giving the same to the
Trustee, at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of the Initial Purchasers, 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) Entire Agreement. This Agreement, the other
writings referred to herein (including the Declaration, the Capital Securities
Guarantee and the Indenture) and the Liquidated Damages Agreement among the
parties hereto of even date contain the entire understandings among the parties
with respect to its subject matter. This Agreement supersedes all prior
agreements and understandings among the parties with respect to its subject
matter.
(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.
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(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.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) Securities Held by the Company, the Trust or its
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company, the Trust or its affiliates (as such term is
defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
ML BANCORP, INC.
By: [SIG]
-----------------------------------
Name:
Title:
ML CAPITAL TRUST I
By: [SIG]
------------------------------------
Name:
Title:
By: [SIG]
------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above
written:
SANDLER X'XXXXX & PARTNERS, X.X.
XXXXXX XXXXXXXXXX XXXXX INC.
By: SANDLER X'XXXXX & PARTNERS, L.P.,
as Representative of the several
Initial Purchasers
By: SANDLER X'XXXXX & PARTNERS CORP.,
the sole general partner
By: /s/ XXXXXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
