EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of April 15, 2003 between Mercantile Bankshares Corporation, a Maryland
corporation (the "Company"), and the Initial Purchasers (as hereinafter
defined).
This Agreement is made pursuant to the Purchase Agreement dated April 8,
2003 (the "Purchase Agreement"), between the Company, as issuer of $300,000,000
aggregate principal amount of 4.625% Notes due 2013 (the "Notes"), and the
Initial Purchasers, which provides for, among other things, the sale by the
Company to the Initial Purchasers of the aggregate principal amount of Notes
specified therein. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide to the Initial Purchasers
and its direct and indirect transferees the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section
3(u) hereof.
"Affiliate" has the meaning given to that term in Rule 405 under the
Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday, or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed.
"Closing Date" shall mean April 15, 2003, the initial date of delivery of
the Notes from the Company to the Initial Purchasers.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, 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 Notes" shall mean the 4.625% Notes due 2013 issued by the Company
under the Indenture containing terms identical in all material respects to the
Notes (except that (i) interest thereon shall accrue from the last date on which
interest was paid or duly provided for on the Notes or, if no such interest has
been paid, from the Original Issuance Date, (ii) they will not contain terms
with respect to transfer restrictions under the Securities Act, and (iii) they
will not provide for any Special Interest Premium thereon).
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes held by each such Holder for a like amount
of Exchange Notes 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 documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Holder" shall mean any Initial Purchaser, for so long as it owns any
Registrable Notes, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Notes under the
Indenture.
"Indenture" shall mean the Indenture, dated as of April 15, 2003, between
the Company, as issuer, and JPMorgan Chase Bank, as trustee, as the same may be
amended or supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers" shall mean ▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇
Securities Inc. and Sandler ▇'▇▇▇▇▇ & Partners, L.P.
"Inspectors" shall have the meaning set forth in Section 3(p) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Notes.
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"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble to this Agreement.
"Original Issuance Date" shall be April 15, 2003.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof or other legal entity.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments
to the related Registration Statement, and in each case including all documents
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(p) hereof.
"Registrable Notes" shall mean each Note, until the earliest to occur of
(a) the date on which such Note has been exchanged by a Person, other than a
Participating Broker-Dealer, for Exchange Notes in the Exchange Offer, (b)
following the exchange by a Participating Broker-Dealer in the Exchange Offer of
such Note for one or more Exchange Notes, the date on which such Exchange Notes
are sold to a purchaser in accordance with the Exchange Offer Registration
Statement, (c) the date on which such Note has been registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement and (d) the date on which such Note is eligible to be distributed to
the public pursuant to Rule 144(k) under the Securities Act.
"Registration Expenses" shall mean any and all expenses incident to the
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC and 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 Notes in accordance with the rules and regulations of the NASD, (ii)
all fees and expenses incurred in connection with compliance with state
securities or blue sky laws (including reasonable fees and disbursements of one
counsel for all
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underwriters and Holders as a group in connection with blue sky qualification of
any of the Exchange Notes or Registrable Notes) 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, printing and distributing any underwriting
agreements, Notes 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 and its subsidiaries, including the
expenses of any "comfort letters" required by or incident to the performance of
and compliance with this Agreement, and (vi) the reasonable fees and expenses of
the Trustee and its counsel and any exchange agent or custodian.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Notes or Registrable Notes 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
documents 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 Closing Date.
"SEC" shall mean the Securities and Exchange Commission.
"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 pursuant to the provisions of Section 2(b) hereof which covers
all of the Registrable Notes (except Registrable Notes which the Holders have
elected not to include in such Shelf Registration Statement or the Holders of
which have not complied with their obligations under the penultimate paragraph
of Section 3 hereof or under the first paragraph of Section 2(b) hereof) 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
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registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Special Interest Premium" shall have the meaning set forth in Section 2(e)
hereof.
"Suspension Period" shall have the meaning set forth in Section 3(k)
hereof.
"TIA" shall have the meaning set forth in Section 3(m) hereof.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost, (i)
file with the SEC within 120 calendar days after the Original Issuance Date
an Exchange Offer Registration Statement relating to the Exchange Offer,
(ii) use its reasonable best efforts to 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 calendar days after the
Original Issuance Date, and (iii) provided such Exchange Offer Registration
Statement has been declared effective under the Securities Act by the SEC,
commence the Exchange Offer and keep the Exchange Offer open for not less
than 30 calendar days, or longer if required by applicable law, after the
date on which such Registration Statement was declared effective by the SEC
(such period referred to herein as the "Exchange Period") and at the
termination thereof issue Exchange Notes in exchange for all Registrable
Notes validly tendered prior thereto in the Exchange Offer.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming a part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) utilize the services of the Depositary for the Exchange
Offer with respect to Notes represented by a global certificate;
(iii) permit Holders to withdraw tendered Registrable Notes at
any time prior to the close of business, New York City time, on the
last Business Day of the Exchange Period, by sending
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to the institution specified in the notice to Holders a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Notes delivered for
exchange, and a statement that such Holder is withdrawing its election
to have such Registrable Notes exchanged;
(iv) notify each Holder that any Registrable Security not
tendered by such Holder in the Exchange Offer will remain outstanding
and continue to accrue interest 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
(v) otherwise comply in all material respects with all applicable
laws and regulations relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(i) accept for exchange all Registrable Notes or portions thereof
duly tendered and not validly withdrawn pursuant to the Exchange Offer
in accordance with the terms of the Exchange Offer Registration
Statement and letter of transmittal;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Company; and
(iii) issue, and cause the Trustee under the Indenture to
promptly authenticate and deliver to each Holder, Exchange Notes equal
in principal amount to the principal amount of the Notes as are
surrendered by such Holder.
Interest on each Exchange Note issued pursuant to the Exchange Offer will
accrue from the last date on which interest was paid or duly provided for on the
Registrable Note surrendered in exchange therefor or, if no interest has been
paid on such Registrable Note, from the Original Issuance Date. To the extent
not prohibited by any judicial order, judgment, law, regulation or applicable
interpretation of the staff of the SEC, the Company shall use 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 and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions other than those
conditions that are customary in similar exchange offers, except as may be
required by applicable law. Each Holder of Registrable Notes who wishes to
exchange such Registrable Notes for Exchange Notes in the Exchange Offer will be
required to make certain customary representations in connection therewith,
including
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representations that (i) it is not an Affiliate of the Company, (ii) it is not a
broker-dealer tendering Registrable Notes acquired directly from the Company,
(iii) the Registrable Notes being exchanged and the Exchange Notes to be
received by it have been or are being acquired in the ordinary course of its
business, and (iv) at the time of the Exchange Offer, it has no arrangements or
understandings with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes. The Company shall inform
the Initial Purchasers, after consultation with the Trustee, 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 in order to facilitate
the tender of Registrable Notes 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 Exchange Notes held by the Initial Purchasers
and Participating Broker-Dealers, and the Company shall have no further
obligation to register the Registrable Notes held by any other Holder pursuant
to Section 2(b) of this Agreement.
(b) Shelf Registration. If (i) because of any change in law,
regulation or in currently prevailing interpretations thereof by the staff
of the SEC, the Company is not permitted to effect the Exchange Offer as
contemplated by Section 2(a) hereof or (ii) after commencement but prior to
consummation of the Exchange Offer, any Holder of Registrable Notes shall
notify the Company (A) that such Holder is prohibited by applicable law or
SEC policy from participating in the Exchange Offer, (B) that such Holder
may not resell the Exchange Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate
or available for such resales by such Holder, or (C) that such Holder is a
broker-dealer and holds Notes acquired directly from the Company or one of
its Affiliates (any of the events specified in (i) or (ii) 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 shall promptly notify the Holders in writing thereof and shall, at
its cost, file as promptly as practicable after such Shelf Registration
Event Date and, in any event, within 45 days after such Shelf Registration
Event Date, a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Notes (other than Registrable Notes owned
by Holders who have elected not to include such Registrable Notes in such
Shelf Registration Statement or who have not complied with their
obligations under the penultimate paragraph of Section 3 hereof or under
this paragraph), and shall use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the SEC as soon as
practicable and, in any event, on or before the 90th day after the Shelf
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Registration Event Date or, if later, the 180th day after the Original
Issuance Date. No Holder of Registrable Notes shall be entitled to include
any of its Registrable Notes in any Shelf Registration pursuant to this
Agreement unless and until such Holder furnishes to the Company in writing,
within 15 days after receipt of a request therefor, such information as the
Company 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 such Shelf Registration Statement or
Prospectus. Each Holder as to which any Shelf Registration is being
effected agrees to furnish to the Company, without request and as soon as
practicable, 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 agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective and the Prospectus included
therein usable for resales for the earlier of (x) the expiration of the Rule
144(k) Period or (y) such time as all of the Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or otherwise cease to be Registrable Notes (the period from the
effective date of the Shelf Registration Statement until the earlier of the
events described in clauses (x) or (y) being the "Effectiveness Period"). The
Company shall not permit any securities other than Registrable Notes to be
included in the Shelf Registration. The Company will, in the event a Shelf
Registration Statement is declared effective, provide to each Holder of
Registrable Notes covered thereby, a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement, notify each such
Holder when the Shelf Registration has become effective and take any other
action required to permit unrestricted resales of the Registrable Notes. The
Company further agrees 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 agrees to furnish to the Holders of Registrable
Notes covered by such Shelf Registration Statement a reasonable number copies of
any such supplement or amendment promptly after its being filed with the SEC.
(c) Expenses. The Company 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 ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ incurred in
connection with the Exchange Offer and the Shelf Registration Statement, as
applicable. Except as provided herein, each Holder shall pay all expenses
of its counsel, underwriting discounts and commissions
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and transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Notes 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 Notes
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 Exchange Offer Registration Statement or Shelf Registration
Statement will be deemed not to have been effective during the period
beginning upon the commencement of such interference and ending at the time
the offering of Registrable Notes pursuant to such Registration Statement
may legally resume. The Company will be deemed not to have used its
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 it voluntarily and
knowingly takes any action that results in any such Registration Statement
not being declared effective or that results in the otherwise eligible
Holders of Registrable Notes covered thereby not being able to exchange or
offer and sell such Registrable Notes during that period, unless such
action is required by applicable law or regulation.
(e) Special Interest Premium. In the event that:
(i) the Exchange Offer Registration Statement is not filed with
the SEC on or prior to the 120th day after the Original Issuance Date,
then, commencing on the 121st day after the Original Issuance Date, a
special interest premium shall accrue on the principal amount of the
Notes at a rate of 0.50% per annum (the "Special Interest Premium");
(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day after the Original
Issuance Date, then, commencing on the 181st day after the Original
Issuance Date, the Special Interest Premium shall accrue on the
principal amount of the Notes;
(iii) the Company has not consummated the Exchange Offer on or
before the 45th day after the Exchange Offer Registration Statement is
declared effective by the SEC, then, commencing on the 46th day after
such effective date, the Spec1ial Interest Premium shall accrue on the
principal amount of the Notes;
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(iv) the Shelf Registration Statement is required to be filed
pursuant to Section 2(b) but is not declared effective by the SEC on
or before the later of (A) the 90th day after the Shelf Registration
Event Date and (B) the 180th day after the Original Issuance Date,
then, commencing on the 91st day after the Shelf Registration Event
Date or the 181st day after the Original Issuance Date, as the case
may be, the Special Interest Premium shall accrue on the principal
amount of the Notes.
(v) the Shelf Registration Statement or the Exchange Offer
Registration Statement, as the case may be, has been declared
effective and, other than as a result of the commencement of a
Suspension Period in accordance with Section 3(k), such Registration
Statement ceases to be continuously effective or the Prospectus
contained in such Registration Statement ceases to be usable for
resales at any time prior to the expiration of the Effectiveness
Period (in the case of a Shelf Registration Statement) or the
Applicable Period (in the case of an Exchange Offer Registration
Statement) without being succeeded within five Business Days by a
post-effective amendment to such Registration Statement or a report
filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act that cures such failure and, in the case of a
post-effective amendment, is itself immediately declared effective,
then the Special Interest Premium shall accrue on the principal amount
of the Registrable Notes covered by such Registration Statement
commencing on the 6th business day after such Registration Statement
ceases to be effective or the Prospectus ceases to be usable for
resales; provided, however, that no Special Interest Premium shall
accrue pursuant to this clause (v) either (A) prior to the
consummation of the Exchange Offer or (B) on Registrable Notes held by
Persons other than Participating Broker-Dealers, in either case solely
because the Exchange Offer Registration Statement has ceased to be
effective or the Prospectus contained therein has ceased to be usable
for resales; and
(vi) (A) on or prior to the 45th or 75th day, as the case may be,
of any Suspension Period, such suspension has not been terminated or
(B) Suspension Periods exceed an aggregate of 90 days in any 360 day
period or an aggregate of 45 days (or 75 days, as applicable) in any
90-day period, then the Special Interest Premium shall accrue on the
principal amount of the Registrable Notes at a rate of 0.50% per annum
commencing upon the day following such 45th, 75th or 90th day, as the
case may be;
provided, however, that the aggregate amount of the Special Interest Premium in
respect of the Notes may not exceed 0.50% per annum (regardless of whether
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multiple events triggering a Special Interest Premium under this subsection (e)
exist); provided, further, however, that (A) upon the filing of the Exchange
Offer Registration Statement (in the case of clause (i) above), (B) upon the
effectiveness of the Exchange Offer Registration Statement (in the case of
clause (ii) above), (C) upon the consummation of the Exchange Offer (in the case
of clause (iii) above), (D) upon the effectiveness of the Shelf Registration
Statement (in the case of clause (iv) above) and (E) upon the earlier of (x)
such time as the Registration Statement which had ceased to remain effective or
the Prospectus which had ceased to be usable for resales again becomes effective
and usable for resales, as applicable, (y) except with respect to Exchange Notes
held by a Participating Broker-Dealer, the expiration of the Effectiveness
Period, and (z) with respect to Exchange Notes held by a Participating
Broker-Dealer, such time as the Participating Broker-Dealer may resell the
Exchange Notes pursuant to the exemption provided by Section 4(3) of the
Securities Act (in the case of each of clauses (v) and (vi) above), the Special
Interest Premium on the principal amount of the Notes as a result of such clause
(or the relevant subclause thereof) shall cease to accrue;
provided, further, however, that if the Shelf Registration Statement is not
declared effective by the SEC on or prior to the 180th day after the Original
Issuance Date and the Company shall request Holders to provide the information
required by the SEC for inclusion in the Shelf Registration Statement, the Notes
owned by Holders who do not provide such information when required pursuant to
Section 2(b) will not be entitled to any Special Interest Premium for any day
after the 180th day after the Original Issuance Date, regardless of the
existence of any events which would otherwise trigger a Special Interest Premium
under this subsection (e) for such Holders.
Any Special Interest Premium due pursuant to this Section 2(e) will be
payable in cash on the next succeeding April 15 or October 15, as the case may
be, to eligible Holders (as determined under this subsection (e)) on the
relevant record dates for the payment of interest pursuant to the Indenture.
(f) Specific Enforcement. Without limiting the remedies available to
the Holders, the Company acknowledges that any failure by the Company 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 obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
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(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 Sections 2(a) and 2(b) hereof
on the appropriate form under the Securities Act, which form shall (x) be
selected by the Company, (y) in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the selling Holders
thereof and, in the case of an Exchange Offer, be available for the
exchange of Registrable Notes, and (z) 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
reasonable best efforts to cause such Registration Statement to become
effective and remain effective (and, in the case of a Shelf Registration
Statement, the Prospectus to be 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 Notes, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall
furnish to and afford the Holders of the Registrable Notes 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 (for up to two business days)
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed; and the Company 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 in a timely manner;
(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 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 respective rules and regulations promulgated
thereunder applicable to it with respect to the disposition of all Notes
covered by each Registration Statement during the Effectiveness Period or
the Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof described
in this Agreement (including sales by any Participating Broker-Dealer);
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(c) in the case of an Exchange Offer Registration Statement, if,
because of a change in law, regulation or in currently prevailing
interpretations thereof by the staff of the SEC after the date hereof, in
the reasonable opinion of counsel to the Company there is a genuine
question as to whether or not the Exchange Offer is permitted by the
federal securities laws, promptly seek a no-action letter or other
appropriate guidance from the SEC allowing the Company to consummate an
Exchange Offer for such Notes. The Company hereby agrees to use its
reasonable efforts to pursue the issuance of such guidance to the SEC staff
level but shall not be required to make commercially unreasonable efforts
to effect a change of SEC policy. The Company hereby agrees, however, to
diligently pursue a resolution (which need not be favorable) by the SEC
staff of such submission. Assuming compliance by the Company with the
foregoing, the failure to obtain such resolution by the 180th day following
the Original Issuance Date shall constitute a Shelf Registration Event
under clause (i) of Section 2(b) hereof and therefore no Special Interest
Premium shall accrue pursuant to Section 2(e)(i) or 2(e)(ii) hereof;
(d) [Reserved];
(e) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes included in the Shelf Registration Statement, at least
three Business Days prior to filing, that a Shelf Registration Statement
with respect to the Registrable Notes is being filed and advise such Holder
that the distribution of Registrable Notes will be made in accordance with
the method selected by the Majority Holders, (ii) furnish to each Holder of
Registrable Notes included in the Shelf Registration Statement and to each
underwriter of an underwritten offering of Registrable Notes, 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
Notes and (iii) consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Notes
included in the Shelf Registration Statement in connection with the
offering and sale of the Registrable Notes covered by the Prospectus or any
amendment or supplement thereto;
(f) in the case of a Shelf Registration, register or qualify the
Registrable Notes 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 Notes covered by
a Registration Statement and each underwriter of an underwritten offering
of Registrable Notes 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
13
jurisdiction of such Registrable Notes owned by such Holder; provided,
however, that the Company 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(f), (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;
(g) (i) in the case of a Shelf Registration or if Participating
Broker-Dealers from whom the Company has received prior written notice that
they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(u) hereof, are seeking to
sell Exchange Notes and are required to deliver Prospectuses, promptly
notify each Holder of Registrable Notes, or such Participating
Broker-Dealers, as the case may be, their counsel and the managing
underwriters, if any, and promptly confirm such notice in writing (u) when
a Registration Statement has become effective and when any post-effective
amendments thereto become effective, (v) 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, (w) 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 Notes or the Exchange Notes to be offered or sold by any
Participating Broker-Dealer in any jurisdiction described in Section 3(f)
hereof or the initiation of any proceedings for that purpose, (x)in the
case of a Shelf Registration, if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Notes
covered thereby, the representations and warranties of the Company
contained in any purchase agreement, securities sales agreement or other
similar agreement cease to be true, correct and complete in all material
respects, (y)of the happening of any event or the failure of any event to
occur or the discovery of any facts, 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 in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, as well as any other corporate
developments, public filings with the SEC or similar events causing such
Registration Statement not to be effective or the Prospectus not to be
useable for resales and (z) of the reasonable determination of the Company
that a post-effective amendment to the Registration Statement would be
appropriate;
(h) obtain the withdrawal of any order suspending the effectiveness of
a Registration Statement as soon as practicable;
14
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes included within the coverage of such Shelf Registration
Statement, without charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post-effective
amendment thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold and not
bearing any restrictive legends (except any customary legend borne by
securities held through The Depository Trust Company or any similar
depository) and in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request (provided such names are consistent
with the names of the selling securityholders set forth in the Shelf
Registration Statement) at least two Business Days prior to the closing of
any sale of Registrable Notes pursuant to such Shelf Registration
Statement;
(k) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in
Section 3(g)(v), 3(g)(w), or 3(g)(y) (subject to any Suspension Period
commenced in accordance with this Section 3(k)) or 3(g)(z) hereof, or any
other event that would cause such Registration Statement or the Prospectus
contained therein not to be effective and usable for resales of Registrable
Notes in accordance with the methods of distribution described therein
during the Effectiveness Period (in the case of a Shelf Registration) or
the Applicable Period (in the case of an Exchange Offer Registration),
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 so amended or
supplemented such Registration Statement and Prospectus will not include
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading and will be usable for their intended purposes; and the Company
shall 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 Registration Statement or Prospectus to correct such
misstatement or omission;
notwithstanding the foregoing, the Company may suspend the effectiveness of a
Registration Statement by written notice to the Holders (in the case of a Shelf
Registration Statement) or to the Participating Broker-Dealers who have notified
the Company that they will be utilizing the Prospectus contained in the Exchange
15
Offer Registration Statement as provided in Section 3(u) (in the case of an
Exchange Offer Registration Statement), for a period not to exceed an aggregate
of 45 days in any 90-day period (each such period, a "Suspension Period") if:
(x) an event occurs and is continuing as a result of which such
Registration Statement would, in the Company's reasonable judgment, 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
(y) the Company reasonably determines that the disclosure of such
event at such time would have a material adverse effect on the business of
the Company and its subsidiaries taken as a whole or on a previously
undisclosed proposed or pending material business transaction;
provided that in the event the disclosure relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which would
impede the Company's ability to consummate such transaction, the Company may
extend a Suspension Period from 45 days to 75 days; provided, however, that
Suspension Periods shall not exceed an aggregate of 90 days in any 360-day
period; provided, further, however, that the commencement of a Suspension Period
shall not relieve the Company of its obligations to pay Special Interest Premium
in accordance with Section 2(e), except as provided therein, or to consummate
the Exchange Offer in accordance with, and within the time period specified in,
this Agreement.
(l) obtain a CUSIP number, and any other appropriate security
identification number, for the Exchange Notes or the Registrable Notes, as
the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with certificates for the Exchange Notes
or the Registrable Notes, as the case may be, in a form eligible for
deposit with the Depositary;
(m) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Notes or Registrable Notes, 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 cause the 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;
(n) 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
16
25% in aggregate principal amount of the Registrable Notes in order to
expedite or facilitate the registration or the disposition of the
Registrable Notes;
(o) 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 (i) an Initial Purchaser,
in the case where such Initial Purchaser holds Notes acquired by it as part
of its initial placement, or (ii) Holders of at least 25% in aggregate
principal amount of the Registrable Notes covered thereby: (w) make such
representations and warranties to each selling Holder and the underwriters
(if any), with respect to the business of the Company 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 to underwriters in underwritten offerings, and
confirm the same if and when requested; (x) obtain opinions of counsel for
the Company 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 amount of the
Registrable Notes 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); (y) obtain "comfort letters" and updates thereof in form
and substance reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Company, addressed to each
of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "comfort letters" in connection
with underwritten offerings and such other matters as reasonably requested
by such underwriters in accordance with Statement on Auditing Standards No.
72; and (z) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than
those set forth in Section 4 hereof (or such other provisions and
procedures acceptable to holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and the
managing underwriters) customary for such agreements with respect to all
parties to be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders); and in the case of an
underwritten registration, the above requirements shall be satisfied at
each closing under the related underwriting agreement or as and to the
extent required thereunder;
(p) if (i) a Shelf Registration is filed pursuant to Section 2(b), or
(ii) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
17
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make reasonably available for
inspection by any selling Holder of Registrable Notes or Participating
Broker-Dealer, as applicable, who certifies to the Company that it has a
current intention to sell Registrable Notes pursuant to the Shelf
Registration, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or 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 organizational and operational
documents and properties of the Company (collectively, the "Records") as
shall be reasonably necessary to enable them to conduct due diligence
activities, and cause the officers, directors and employees of the Company
to supply all relevant information in each case reasonably requested by any
such Inspector in connection with such Registration Statement; Records and
information which the Company determines, in good faith, to be confidential
and any Records and information which it notifies the Inspectors are
confidential shall not be disclosed to any Inspector except where (x) the
disclosure of such Records or information is necessary to avoid or correct
a material misstatement or omission in such Registration Statement, (y) the
release of such Records or information 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 (z) such Records or
information previously has been made generally available to the public;
each selling Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to agree in writing that Records and
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 Company unless and until such Records
and information are made generally available to the public through no fault
of an Inspector or a selling Holder; and each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning that
disclosure of such Records or information 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 and information
deemed confidential;
(q) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any 12-month period (or 90 days after
the end of any
18
12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Notes 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,
provided that the obligations under this paragraph (q) shall be satisfied
by the timely filing of quarterly and annual reports on Forms 10-Q and 10-K
under the Exchange Act;
(r) if an Exchange Offer is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Notes, the Company
shall ▇▇▇▇, or cause to be marked, on such Notes delivered by such Holders
that such Notes are being cancelled in exchange for the Exchange Notes; it
being understood that in no event shall such Notes be marked as paid or
otherwise satisfied;
(s) cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the NASD;
(t) take all other steps necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated hereby;
(u) (i) in the case of the Exchange Offer Registration Statement (A)
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 that holds
Registrable Notes acquired for its own account as a result of market-making
activities or other trading activities (a "Participating Broker-Dealer")
and that will be the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes 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 broker-dealer who receives Exchange Notes for
Registrable Notes 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 Notes, (B)
furnish to each Participating Broker-Dealer who has
19
delivered to the Company the notice referred to in Section 3(g), 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 (the Company 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
Notes covered by the Prospectus or any amendment or supplement thereto),
(C) 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 Notes; provided, however, that such period
shall not be required to exceed 180 days (or such longer period if extended
pursuant to the last sentence of Section 3 hereof) (the "Applicable
Period"), and (D) 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 Notes 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 Notes received in
respect of such Registrable Notes pursuant to the Exchange Offer";
and (y) a statement to the effect that by a Participating Broker-Dealer making
the acknowledgment described in clause (x) above and by delivering a Prospectus
in connection with the exchange of Registrable Notes, the Participating
Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Securities Act; and
(ii) in the case of any Exchange Offer Registration Statement,
the Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if reasonably
requested by the Initial Purchasers or such other representative of
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (A) an opinion
of counsel in form and substance reasonably satisfactory to the
Initial Purchasers or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with exchange offer registration statements
and such other matters as
20
may be reasonably requested (it being agreed that the matters to be
covered by such opinion may be subject to customary qualifications and
exceptions), (B) an officer's certificate substantially similar to
that specified in Section 6(h) of the Purchase Agreement and such
additional certifications as are customarily delivered in a public
offering of debt securities and (C) upon the effectiveness of the
Exchange Offer Registration Statement, a comfort letter in customary
form if permitted by Statement on Auditing Standards No. 72.
The Company may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Company such information
regarding such seller as may be required by the staff of the SEC to be included
in a Registration Statement. The Company may exclude from such registration the
Registrable Notes of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request. The Company
shall have no obligation to register under the Securities Act the Registrable
Notes 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 that they will be utilizing
the Prospectus contained in the Exchange Offer Registration Statement as
provided in this Section 3(u) are seeking to sell Exchange Notes and are
required to deliver Prospectuses, each Holder agrees that, upon receipt of
any notice from the Company of the occurrence of any event specified in
Section 3(g)(v), 3(g)(w), 3(g)(y) or 3(g)(z) hereof, such Holder will
forthwith discontinue disposition of Registrable Notes pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(k) hereof or
until it is advised in writing (the "Advice") by the Company that the use
of the applicable Prospectus may be resumed, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense)
all copies in such Holder's possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such
Registrable Notes or Exchange Notes, as the case may be, current at the
time of receipt of such notice. If the Company shall give any such notice
to suspend the disposition of Registrable Notes or Exchange Notes, as the
case may be, pursuant to a Registration Statement, the Company shall use
its reasonable best efforts to file and have declared effective (if an
amendment), as soon as practicable after the resolution of the related
matters, an amendment or supplement to the Registration Statement and shall
extend the period during which such Registration Statement is required to
be maintained effective and the Prospectus 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 shall have made available to the Holders copies of the
21
supplemented or amended Prospectus necessary to resume such dispositions or
the Advice.
4. Indemnification and Contribution. In connection with a Shelf
Registration Statement or in connection with any delivery of a Prospectus
contained in an Exchange Offer Registration Statement by any Participating
Broker-Dealer or Initial Purchaser, as applicable, who seeks to sell Exchange
Notes, the Company shall indemnify and hold harmless each Holder of Registrable
Notes included within any such Shelf Registration Statement and any applicable
underwriter and each Participating Broker-Dealer or Initial Purchaser selling
Exchange Notes, and each Person, if any, who controls any such Person within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, a "Participant") against any and all loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and sales
of Registrable Notes) to which such Participant may became subject under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any
amendment or supplement thereto) covering Registrable Notes or
Exchange Notes, as applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary in order 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 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; or
(ii) any act or failure to act or any alleged act or failure to
act by any Participant in connection with, or relating in any manner
to, the Registrable Notes or the offering thereof as contemplated
hereby, and which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based upon
matters covered by clause (i) above (provided that the Company shall
not be liable under this clause (ii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly
from any such acts or failure to act undertaken or omitted to be taken
by such Participant through its gross negligence or willful
misconduct);
and shall reimburse each Participant promptly upon demand for any legal or other
expenses reasonably incurred by such Participant in connection with
investigating
22
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that this
indemnity does not apply to any loss, liability, claim, damage or expense to the
extent arising out of (i) an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
concerning a Participant furnished in writing to the Company by such Participant
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) or (ii) the failure of any
Holder to comply with the provisions of the last paragraph of Section 3;
provided further that as to any preliminary Prospectus, the indemnity agreement
contained in this Section 4(a) shall not inure to the benefit of any such
Participant on account of any loss, claim, damage, liability, action or expense
arising from the sale of the Notes to any person by that Participant if (i) that
Participant failed to send or give a copy of the Prospectus, as the same may be
amended or supplemented, to that person within the time required by the
Securities Act and (ii) the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
preliminary Prospectus was corrected in the Prospectus, unless, in each case,
such failure resulted from non-compliance by the Company with Section 3 hereof.
The foregoing indemnity is in addition to any liability which the Company may
otherwise have to any Participant.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, officers and employees, and
each Person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any and
all loss, liability, claim, damage and expense whatsoever described in the
indemnity contained in Section 4(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in a Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with information concerning a Participant furnished in
writing to the Company by such Participant 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 Participant shall be liable
for any claims hereunder in excess of the amount of net proceeds received
by such Participant from the sale of Registrable Notes pursuant to such
Shelf Registration Statement. The foregoing indemnity is in addition to any
liability which any Participant may otherwise have to the Company.
(c) Promptly after receipt by an indemnified party under this Section
4 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 4, notify the indemnifying party in
writing of the claim or the commencement of that action; provided,
23
however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 4 except
to the extent it has been materially prejudiced by such failure and,
provided further that the failure to notify the indemnifying party shall
not relieve the indemnifying party from any liability which it may have to
an indemnified party otherwise than under this Section 4. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 4 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that a Participant
that is an indemnified party shall have the right, upon written notice to
the Company, to employ counsel to represent jointly such indemnified party
and those other Participants who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Participants
against the Company under this Section 4 if, in the reasonable judgment of
the indemnified party, it is advisable for the indemnified party and those
other Participants to be jointly represented by separate counsel, and in
that event the reasonable fees and expenses of such separate counsel shall
be paid by the Company. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees, disbursements
and other charges of more than one separate firm of attorneys (in addition
to any local counsel) at any one time for all such indemnified party or
parties. No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be unreasonably
withheld), 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 and 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 or (ii) be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with the
consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment to the extent required
by this Section 4.
24
(d) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified
party although applicable in accordance with its terms, the Company and the
Participants shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company and the Participants, as incurred; provided,
however, that no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person that was not guilty of such fraudulent
misrepresentation. As between the Company and the Participants, such
parties shall contribute to such aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by this Agreement in such
proportion as shall be appropriate to reflect the relative fault of the
Company, on the one hand, and the Participants, 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, on the one hand, and of the Participants, 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, on the one hand, or by or on behalf of the Participants, on the
other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Participants 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. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 4 shall be deemed to include, for purposes of this Section
4, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending or preparing to defend
against any such action or claim. Notwithstanding the provisions of this
Section 4, no Participant shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes purchased
by it were resold exceeds the amount of any damages which such Participant
has otherwise been required to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. The obligations of the
Participants to contribute as provided in this Section 4(d) are several and
not joint. The indemnity and contribution provisions contained in this
Section 4 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Participant or on behalf of the Company, or any person
controlling such person, and (iii) acceptance of
25
and payment for any of the Notes. The remedies provided for in this Section
4 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
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 Notes on the basis provided in the underwriting
arrangement approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Notes covered by
the Shelf Registration Statement who desire to do so may sell the Notes covered
by such Shelf Registration in an underwritten offering. In any such underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the holders of a majority in
aggregate principal amount of the Registrable Notes included in such offering;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company will file the reports
required to be filed by it under the Securities Act and Section 13(a) or
15(d) of the Exchange Act and the rules and regulations adopted by the SEC
thereunder; provided, however, that if the Company ceases to be so required
to file such reports, it will, upon the request of any Holder of
Registrable Notes, (i) make publicly available such information as is
necessary to permit sales of its securities pursuant to Rule 144 under the
Securities Act, (ii) 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 (iii) 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 Notes without
registration under the Securities Act within the limitation of the
exemptions provided by (A) Rule 144 under the Securities Act, as such rule
may be amended from time to time, (B) Rule 144A under the Securities Act,
as such rule may be amended from time to time, or (C) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Notes, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
26
(b) No Inconsistent Agreements. The Company has not entered into, nor
will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof without the written consent of Holders of a majority in
aggregate principal amount of the outstanding Registrable Notes. 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
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 has obtained the written
consent of Holders of a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or departure; provided that no amendment, modification,
supplement, waiver or consent to the departure with respect to the
provisions of Section 4 hereof shall be effective as against any Holder of
Registrable Notes unless consented to in writing by such Holder of
Registrable Notes. Notwithstanding the foregoing sentence, (i) this
Agreement may be amended, without the consent of any Holder of Registrable
Notes, by written agreement signed by the Company and the Initial
Purchasers, to cure any ambiguity, correct or supplement any provision of
this Agreement that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with
other provisions of this Agreement, (ii) this Agreement may be amended,
modified or supplemented, and waivers and consents to departures from the
provisions hereof may be given, by written agreement signed by the Company
and the Initial Purchasers 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 and
regulation (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 the Initial Purchasers, such provision may be amended, modified
or supplemented, and waivers or consents to departures from such provisions
may be given, by written agreement signed by the Initial Purchasers and the
Company.
(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 by means of a notice given in accordance
27
with the provisions of this Section 7(d), which address initially is, with
respect to the Initial Purchasers:
Office of General Counsel
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and (ii) if to the Company, initially at the Company's address:
Mercantile Bankshares Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
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 any courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the
Initial 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 Notes in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Notes in any manner, whether by operation of law or otherwise,
such Registrable Notes shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Notes, such Person
shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof.
(f) Third Party Beneficiaries. Each Holder and any Participating
Broker-Dealer shall be third party beneficiaries of the agreements made
hereunder between the Initial Purchasers and the Company, and the Initial
Purchasers shall have the right to enforce such
28
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE IN
THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(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) Registrable Notes Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Company or its
Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Notes. There
are no restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein with respect to the registration rights
granted by the Company with respect to the Notes. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MERCANTILE BANKSHARES CORPORATION
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.
By: SANDLER ▇'▇▇▇▇▇ & PARTNERS CORP.
By: /S/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
