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EXHIBIT 4.7
EXECUTION COPY
UNION PLANTERS CAPITAL TRUST A
$200,000,000 8.20% CAPITAL TRUST PASS-THROUGH SECURITIESSM (TRUPSSM)
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
UNION PLANTERS CORPORATION
REGISTRATION AGREEMENT
New York, New York
December 5, 1996
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Union Planters Capital Trust A (the "Trust"), a statutory business trust
formed under the laws of the state of Delaware by Union Planters Corporation
(the "Company"), proposes to issue and sell to the Initial Purchasers (the
"Initial Purchasers") named in the Purchase Agreement of even date herewith
(the "Purchase Agreement"), for whom you are acting as representative (the
"Representative"), the 8.20% 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 8.20% Junior
Subordinated Deferrable Interest Debentures due 2026 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:
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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 Registration Period" means the 1 year period following the
Closing Date, exclusive of any period during which any stop order shall be in
effect suspending the 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 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 December [ ], 1996
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.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities or the Exchange Securities, covered by
such Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Registered Exchange Offer" means the offer to the Holders to issue and
deliver to such Holders, in exchange for the Registrable Securities, a like
principal amount, stated liquidation preference or number, as the case may be,
of the Exchange Securities.
"Registrable Securities" has the meaning set forth in the preamble hereto.
"Registration Statement" means any Exchange Offer Registration Statement
or Shelf Registration Statement that covers any of the Registrable Securities
or the Exchange Securities pursuant to the provisions of this Agreement,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Representative" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section 3
hereof.
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"Shelf Registration 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.
"Subordinated Debt Securities" has the meaning set forth in the preamble
hereto.
"Tax Contingency" has the meaning set forth in Section 2(g) hereof.
"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) The Company and the Trust shall prepare and, not
later than 150 days following the Closing Date, shall file with the Commission
the Exchange Offer Registration Statement with respect to the Registered
Exchange Offer. The Company and the Trust shall use their best efforts to cause
the Exchange Offer Registration Statement to become effective under the Act
within 180 days of the Closing Date. The Company and the Trust shall use their
best efforts to consummate the Registered Exchange Offer within 210 days of the
Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration Statement,
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 the distribution of the Exchange Securities) to trade such Exchange
Securities from and after their receipt without any limitations or 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;
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(ii) keep the Registered Exchange Offer open for not less than
30 days and not more than 45 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law);
(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; and
(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.
(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, (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, (ii) the Trust will be required to issue new capital
securities in exchange for a like amount of stated liquidation preference of
Capital Securities and (iii) the Company will be required to issue a new
guarantee in exchange for the extinguishment of the Guarantee. 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 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 or
eliminated, as appropriate, in the Exchange Securities.
(f) The Initial Purchasers, the Company and the Trust acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale 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 Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the
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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 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(h) below.
(g) In the event that the Company shall determine in good faith that there
is a reasonable likelihood that, or a material uncertainty exists as to
whether, consummation of the Registered Exchange Offer would result in an
adverse tax consequence to the Company (a "Tax Contingency"), the Company and
the Trust may, in lieu of the commencement of a Registered Exchange Offer,
effect a Shelf Registration of the Registrable Securities pursuant to Section
3.
3. Shelf Registration. If, (i) because of any change in law or applicable
interpretations thereof by the Commission's staff, the Company and the Trust
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof, or
(ii) if for any other reason the Exchange Offer Registration Statement is not
declared effective by the Commission within 180 days of the Closing Date, or
(iii) if any Initial Purchaser so requests with respect to Registrable
Securities held by it following consummation of the Registered Exchange Offer
other than "freely tradable" Exchange Securities, or (iv) if any Holder that is
a broker-dealer, is not an affiliate of the Company or the Trust and is not
eligible to participate in the Registered Exchange Offer so requests with
respect to Registrable Securities held by it following the consummation of the
Registered Exchange Offer other than "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, and shall thereafter use their best efforts to cause to be
declared effective under the Act within (i) 210 days of the Closing Date, or
(ii) 240 days of the Closing Date in the event that a Tax Contingency exists on
the 210th day following the Closing Date, or (iii) promptly in the event of a
request by an Initial Purchaser, a Shelf Registration Statement relating to the
offer and sale 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; provided, that with respect to Exchange Securities received
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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 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 a period of one year from the date the Shelf Registration
Statement is declared effective in the case of a Shelf Registration Statement
filed at the request of an Initial Purchaser) or such shorter period that will
terminate upon the earlier of the following: (A) when all the Capital
Securities or Exchange Securities corresponding to such Capital Securities
covered by the 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 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 thereto (in any such case, such
period being called the "Shelf Registration Period"). Furthermore, the Company
and the Trust shall each use its best efforts, upon the effectiveness of the
Shelf Registration Statement, to promptly upon the request of any Holder to
take any action reasonable necessary to register the sale of any Registrable
Securities or Exchange Securities of such Holder and to identify such Holder as
a selling securityholder. 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.
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:
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(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 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 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 threatening of any proceeding for such purpose; and
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(iii) the happening of any event that requires the making of
any changes in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not misleading
and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made).
(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).
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(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 Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer; and the Company and the Trust each consent to the
use of the Prospectus or any amendment or supplement thereto by any such
Exchanging Dealer, as aforesaid.
(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 they are not then so qualified or to take any action which
would subject them to general service of process or to taxation in any such
jurisdiction where they are 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) Upon the occurrence of any event contemplated by paragraph (c)(2)(iii)
of this Section 4, the Company and the Trust shall promptly prepare a
post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to purchasers of the securities included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
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 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 best efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number for all Exchange
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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 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 agreement of the Company providing for the
Guarantee and the declaration of trust of the Trust pursuant to which the terms
of the Capital Securities are established, or any corresponding documents in
respect of the Exchange Securities, as the case may be, to be qualified under
the Trust Indenture Act in a timely manner.
(p) The Company and the Trust may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Company and
the Trust such information regarding the holder and the distribution of such
securities as the Company and the Trust may from time to time reasonably
require for inclusion in such Registration Statement.
(q) 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 practically after
they are notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(r) In the case of any Shelf Registration Statement, the Company and the
Trust shall enter into such agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Registrable Securities or the Exchange
Securities, as the case may be, to be registered thereunder. 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 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 such Holders, Initial Purchaser or any such 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
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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) 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 be reasonably requested by such Holders, Initial Purchaser
(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 public 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, in customary form 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(l) 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 fees and disbursements of one firm or 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 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
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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.
The Company also agrees to indemnify or contribute to Losses 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(r)
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, their respective
directors, officers and trustees (including each officer or trustee of the
Company or the Trust who signs such Registration Statement), 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, 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
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relieve it from liability under paragraph (a) or (b) above unless and to the
extent it 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 such
separate counsel (and local counsel) 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, 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 a
Exchange Security, applicable to the 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
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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).
(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 or the
Company or 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.
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(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 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 Holders, determined on the basis
of securities being sold rather than registered under such Registration
Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company;
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at their
addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers, the Company or the Trust by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company and the Trust thereto, subsequent Holders of Registrable Securities
and/or Exchange Securities. The Company and the Trust hereby agree to extend
the benefits of this Agreement to any Holder of Registrable Securities and/or
Exchange Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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(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 of 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 of,
Registrable Securities or Exchange Securities is required hereunder,
Registrable Securities or Exchange Securities, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Registrable
Securities or Exchange Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Registrable Securities or
Exchange Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
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Please confirm your agreement by having your authorized officer sign a
copy of this Registration Agreement in the space set forth below and returning
the signed copy to us.
Very truly yours,
UNION PLANTERS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx, Xx.
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
UNION PLANTERS CAPITAL TRUST A
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
as Regular Trustee
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
as Regular Trustee
Accepted:
SALOMON BROTHERS INC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate
Date: December 5, 1996
