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EXHIBIT 4(h)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 3, 1997, among
Cullen/Frost Bankers, Inc., a Texas corporation (the "Guarantor"), Cullen/Frost
Capital Trust I, a Delaware statutory business trust (the "Trust"), and the
Purchasers of the 8.42% Capital Securities, Series A, of the Trust, which are
guaranteed by the Guarantor.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Administrative Trustees" shall mean the Administrative Trustees
named under the Trust Agreement.
(b) "Capital Securities" shall mean the 8.42% Capital Securities,
Series A, Liquidation Amount $1,000 per Capital Security, to be issued
under the Trust Agreement and sold to the Purchasers, and securities issued
in exchange therefor, other than Debentures, or in lieu thereof pursuant to
the Trust Agreement.
(c) "Closing Date" shall mean the date on which the Capital Securities
are initially issued.
(d) "Commission" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(e) "Debentures" shall mean the 8.42% Junior Subordinated Deferrable
Interest Debentures due February 1, 2027 of the Guarantor to be issued
under the Indenture, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
(f) "Effective Time", in the case of (i) an Exchange Offer, shall mean
the time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration effective or as of which the Shelf
Registration otherwise becomes effective.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
(h) "Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof.
(i) "Exchange Offer Registration Statement" shall have the meaning
assigned thereto in Section 2(a) hereof.
(j) "Exchange Registration" shall have the meaning assigned thereto in
Section 3(f) hereof.
(k) "Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
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(l) "Guarantee" shall mean the guarantee of the Capital Securities by
the Guarantor under the Guarantee Agreement, dated as of February 3, 1997,
between the Guarantor and The Bank of New York, as Guarantee Trustee.
(m) The term "holder" shall mean the Purchasers for so long as any of
them owns any Registrable Securities, and such of their respective
successors and assigns who acquire Registrable Securities, directly or
indirectly, from such persons or from any successor or assign of such
persons, in each case for so long as such person owns any Registrable
Securities.
(n) "Indenture" shall mean the Indenture, dated as of February 3,
1997, between the Guarantor and The Bank of New York, as Trustee, as the
same shall be amended from time to time.
(o) "Liquidation Amount" shall mean the stated amount of $1,000 per
Trust Security.
(p) The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
(q) "Purchase Agreement" shall mean the Purchase Agreement, dated as
of February 3, 1997, among the Purchasers, the Trust and the Guarantor.
(r) "Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
(s) "Registrable Securities" shall mean the Securities; provided,
however, that such Securities shall cease to be Registrable Securities when
(i) in the circumstances contemplated by Section 2(a) hereof, such
Securities have been exchanged for Exchange Securities in an Exchange Offer
as contemplated in Section 2(a) (provided that any Exchange Securities
received by a broker-dealer in an Exchange Offer in exchange for
Registrable Securities that were not acquired by the broker-dealer directly
from the Guarantor will also be Registerable Securities through and
including the earlier of the 180th day after the Exchange Offer is
completed or such time as such broker-dealer no longer owns such Exchange
Securities); (ii) in the circumstances contemplated by Section 2(b) hereof,
a registration statement registering such Securities under the Securities
Act has been declared or becomes effective and such Securities have been
sold or otherwise transferred by the holder thereof pursuant to such
effective registration statement; (iii) such Securities are sold pursuant
to Rule 144 under circumstances in which any legend borne by such
Securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or such Securities are eligible to
be sold pursuant to paragraph (k) of Rule 144; or (iv) such Securities
shall cease to be outstanding.
(t) "Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
(u) "Registration Default Interest" shall have the meaning assigned
thereto in Section 2(c) hereof.
(v) "Registration Default Distributions" shall have the meaning
assigned thereto in Section 2(c).
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(w) "Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
(x) "Resale Period" shall have the meaning assigned thereto in
Section 2(a) hereof.
(y) "Restricted Holder" shall mean (i) a holder that is an affiliate
of the Guarantor within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business
or (iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities.
(z) "Rule 144," "Rule 405" and "Rule 415" shall mean, in each case,
such rule promulgated under the Securities Act.
(aa) "Securities" shall mean, collectively, the Capital Securities,
the Guarantee and the Debentures.
(ab) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(ac) "Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
(ad) "Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of February 3, 1997, among the Guarantor, the trustees
named therein and the holders of Securities issued thereunder.
(ae) "Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
or any successor thereto, as the same shall be amended from time to time.
(af) "Trust Securities" shall mean collectively the Capital Securities
and the Common Securities to be issued under the Trust Agreement to the
Guarantor.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Registration Rights
Agreement as a whole and not to any particular Section or other subdivision.
Unless the context otherwise requires, any reference to a statute, rule or
regulation refers to the same (including any successor statute, rule or
regulation thereto) as it may be amended from time to time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Guarantor and the Trust
agree to use their reasonable best efforts to file under the Securities Act
within 150 days after the Closing Date, a registration statement (the "Exchange
Offer Registration Statement") relating to an offer to exchange (the "Exchange
Offer") any and all of the Securities for a like aggregate amount of capital
securities issued by the Trust and guaranteed by the Guarantor and underlying
junior subordinated deferrable interest debentures of the Guarantor, which
capital securities, guarantee and debentures are identical to the Capital
Securities, the Guarantee and the Debentures, respectively (and are entitled to
the benefits of trust indentures which have been qualified under the Trust
Indenture Act) except that they have been registered pursuant
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to an effective registration statement under the Securities Act, do not contain
restrictions on transfers and do not contain provisions for the additional
interest and additional distributions contemplated in Section 2(c) below (such
new securities hereinafter called "Exchange Securities"). The Guarantor and
the Trust agree to use their reasonable best efforts to cause the Exchange
Offer Registration Statement to become effective under the Securities Act
within 180 days after the Closing Date. The Exchange Offer will be registered
under the Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act. The
Guarantor and the Trust further agree to use their reasonable best efforts to
commence and complete the Exchange Offer promptly after the Exchange Offer
Registration Statement has become effective, hold the Exchange Offer open for
at least 30 days and exchange Exchange Securities for all Securities that have
been properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. The Exchange Offer will be deemed to have been completed only
if the Exchange Securities received by holders other than Restricted Holders in
the Exchange Offer for Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act and
without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The
Exchange Offer shall be deemed to have been completed upon the earlier to occur
of (i) the Guarantor and the Trust having exchanged the Exchange Securities for
all outstanding Securities pursuant to the Exchange Offer and (ii) the
Guarantor having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Securities that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is at least
30 days following the commencement of the Exchange Offer. The Guarantor and the
Trust, agree (x) to include in the registration statement a prospectus for use
in connection with any resales of Exchange Securities by a holder that is a
broker-dealer, other than resales of Exchange Securities received by a
broker-dealer pursuant to the Exchange Offer in exchange for Registrable
Securities acquired by such broker-dealer directly from the Trust, and (y) to
keep the Exchange Offer Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of (i) either (a) the expiration of
the 180th day after the Exchange Offer has been completed or (b) in the event
the Guarantor and the Trust have at any time notified any broker-dealers
pursuant to Section 3(f)(iii) hereof, the day beyond the 180th day after the
Exchange Offer has been completed that reflects an additional period of days
equal to the number of days during all of the periods from and including the
dates the Guarantor and the Trust give notice pursuant to Section 3(f)(iii)(F)
hereof to and including the date when broker-dealers receive an amended or
supplemented prospectus necessary to permit resales of Exchange Securities or
to and including the date on which the Guarantor and the Trust give notice that
the resale of Exchange Securities under the Exchange Offer Registration
Statement may resume or (ii) such time as such broker-dealers no longer own any
Registrable Securities. With respect to such registration statement, each
broker-dealer that holds Exchange Securities received in an Exchange Offer in
exchange for Registerable Securities not acquired by it directly from the
Guarantor shall have the benefit of the rights of indemnification and
contribution set forth in Section 6 hereof.
(b) If (i) prior to the consummation of the Exchange Offer existing
applicable law or Commission interpretations are changed such that the capital
securities, related guarantee of the Guarantor and underlying debentures of the
Guarantor to be received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be, upon
receipt, transferable by each such holder without restriction under the
Securities Act, (ii) the Exchange Offer Registration Statement is not declared
effective within 180 days of the Closing Date, (iii) the Guarantor has received
an opinion of counsel, rendered by a law firm having a recognized national tax
practice, to the effect that, as a result of the consummation
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of the Exchange Offer, there is more than an insubstantial risk that (a) the
Trust is, or will be, subject to United States federal income tax with respect
to income received or accrued on the Debentures, (b) interest payable by the
Guarantor on the Debentures is not, or will not be, deductible by the
Guarantor, in whole or in part, for United States federal income tax purposes,
or (c) the Trust is, or will be, subject to more than a de minimis amount of
other taxes, duties or other governmental charges, then in addition to or in
lieu of conducting the Exchange Offer contemplated by Section 2(a), the
Guarantor and the Trust shall file under the Securities Act as promptly as
practicable a "shelf" registration statement providing for the registration of,
and the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities, pursuant to Rule 415 or any similar rule that may be
adopted by the Commission (the "Shelf Registration"). The Administrative
Trustees will promptly deliver to the holders of the Capital Securities, the
Property Trustee and the Delaware Trustee, or the Guarantor will promptly
deliver to the holders of the Debentures, if not the Trust, written notice that
the Guarantor and the Trust will be complying with the provisions of this
Section 2(b). The Guarantor and the Trust agree to use their reasonable best
efforts to cause the Shelf Registration to become or be declared effective and
to keep such Shelf Registration continuously effective for a period ending on
the earlier of (i) either (x) the third anniversary of the Closing Date or (y)
in the event the Guarantor and the Trust have at any time suspended the use of
the prospectus contained in the Shelf Registration pursuant to Section 3(c)
hereof, the date beyond the third anniversary of the Closing Date that reflects
an additional period of days equal to the number of days during all of the
periods from and including the dates the Guarantor and the Trust give notice of
such suspension pursuant to Section 3(c) to and including the date when holders
of Registrable Securities receive an amended or supplemented prospectus
necessary to permit resales as Registrable Securities under the Registration
Shelf or to and including the date on which the Guarantor and Trust give notice
that the resale to Registrable Securities may resume or (ii) such time as there
are no longer any Registrable Securities outstanding. The Guarantor and the
Trust further agree to supplement or make amendments to the Shelf Registration,
as and when required by the rules, regulations or instructions applicable to
the registration form used by the Guarantor and the Trust for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration, and the Guarantor and the Trust agree to furnish to the
holders of the Registrable Securities copies of any such supplement or
amendment prior to its being used or promptly following its filing with the
Commission.
(c) If the Guarantor or the Trust fail to comply with this Registration
Rights Agreement or if the Exchange Offer Registration Statement or the Shelf
Registration Statement fails to become effective (any such event a
"Registration Default"), then, as liquidated damages, registration default
interest (the "Registration Default Interest") shall become payable in respect
of the Debentures, and corresponding registration default Distributions (the
"Registration Default Distributions"), shall become payable on the Trust
Securities as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is filed with the Commission on or prior to
the 150th day after the Closing Date or (B) notwithstanding that the
Guarantor and the Trust have consummated or will consummate an Exchange
Offer, the Guarantor and the Trust are required to file a Shelf
Registration and such Shelf Registration is not filed on or prior to the
date required by this Registration Rights Agreement, then commencing on the
day after either such required filing date, Registration Default Interest
shall accrue on the principal amount of the Debentures, and Registration
Default Distributions shall accumulate on the Liquidation Amount of the
Trust Securities, each at a rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration is declared effective by the Commission on or prior to
the 30th day after the applicable required filing date or (B)
notwithstanding that the Guarantor and the Trust have consummated or will
consummate an Exchange Offer, the Guarantor and the Trust are
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required to file a Shelf Registration and such Shelf Registration is not
declared effective by the Commission on or prior to the 30th day after the
date such Shelf Registration was required to be filed, then commencing on
the 31st day after the applicable required filing date, Registration
Default Interest shall accrue on the principal amount of the Debentures,
and Registration Default Distributions shall accumulate on the Liquidation
Amount of the Trust Securities, each at a rate of 0.25% per annum; or
(iii) if (A) the Trust and the Guarantor have not exchanged Exchange
Securities for all Securities validly tendered, in accordance with the
terms of the Exchange Offer on or prior to the 30th day after the date on
which the Exchange Offer Registration Statement was declared effective or
(B) if applicable, the Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time prior to the
third anniversary of the Closing Date (other than after such time as there
are no longer any Registrable Securities), then Registration Default
Interest shall accrue on the principal amount of Debentures, and
Registration Default Distributions shall accumulate on the Liquidation
Amount of the Trust Securities, each at a rate of 0.25% per annum
commencing on (x) the 31st day after such effective date, in the case of
(A) above, or (y) the day such Shelf Registration ceases to be effective in
the case of (B) above;
provided, however, that neither the Registration Default Interest rate on the
Debentures, nor the Registration Default Distributions rate on the Liquidation
Amount of the Trust Securities, shall exceed in the aggregate 0.25% per annum;
provided, further, however, that (1) upon the filing of the Exchange Offer
Registration Statement or a Shelf Registration (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration (in the case of clause (ii) above), or (3) upon the
exchange of Exchange Securities for all securities tendered (in the case of
clause (iii) (A) above), or upon the effectiveness of the Shelf Registration
which had ceased to remain effective (in the case of clause (iii) (B) above),
Registration Default Interest on the Debentures, and Registration Default
Distributions on the Liquidation Amount of the Trust Securities as a result of
such clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post-effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
(e) Notwithstanding any other provisions of this Registration Rights
Agreement, in the event that Debentures are distributed to holders of Capital
Securities in liquidation of the Trust pursuant to the Trust Agreement (a) all
references in this Section 2 and Section 3 to Securities, Registrable
Securities and Exchange Securities shall not include the Capital Securities and
Guarantee or Capital Securities and Guarantee issued or to be issued in
exchange therefor in the Exchange Offer, (ii) all requirements for action to be
taken by the Trust in this Section 2 and Section 3 shall cease to apply and all
requirements for action to be taken by the Guarantor in this Section 2 and
Section 3 shall apply to Debentures and Debentures issued or to be issued in
exchange therefor in the Exchange Offer.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
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(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Guarantor and the Trust shall qualify the
Indenture (if not already qualified), the Trust Agreement and the Guarantee
under the Trust Indenture Act of 1939.
(b) In connection with the Guarantor's and the Trust's obligations with
respect to the Shelf Registration, if applicable, the Guarantor and the Trust
shall, as soon as reasonably practicable (or as otherwise specified herein):
(i) prepare and file with the Commission a registration statement with
respect to the Shelf Registration on any form which may be utilized by the
Trust and the Guarantor and which shall permit the disposition of the
Registrable Securities in accordance with the intended method or methods
thereof, as specified in writing by the holders of the Registrable
Securities, and use its reasonable best efforts to cause such registration
statement to become effective as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of
such registration statement for the period specified in Section 2(b) hereof
and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such registration
statement, and furnish to the holders of the Registrable Securities copies
of any such supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(iii) comply, as to all matters within the Guarantor's and the Trust's
control, with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof provided for in such registration
statement;
(iv) provide to any of (A) the holders of the Registrable Securities
to be included in such registration statement, (B) the underwriters (which
term, for purposes of this Exchange and Registration Rights Agreement,
shall include a person deemed to be an underwriter within the meaning of
Section 2(11) of the Securities Act), if any, thereof, (C) the sales or
placement agent, if any, therefor, (D) counsel for such underwriters or
agent and (E) not more than one counsel for all the holders of such
Registrable Securities who so request of the Guarantor in writing the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission
and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2(b), make
available at reasonable times at the Guarantor's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(b)(iv) who shall certify to the Guarantor and the
Trust that they have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other information and
books and records of the Guarantor, and cause the officers, employees,
counsel and independent certified public accountants of the Guarantor to
respond to such inquiries, as shall be reasonably necessary, in the
judgment of the respective counsel referred to in such Section, to conduct
a reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that each such party shall be required
to maintain in confidence and not to disclose to any other person any
information or records reasonably designated by the Guarantor in writing as
being confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise), or
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(B) such person shall be required so to disclose such information pursuant
to a subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of such
order, and only after such person shall have given the Guarantor prompt
prior written notice of such requirement), or (C) such information is
required to be set forth in such registration statement or the prospectus
included therein or in an amendment to such registration statement or an
amendment or supplement to such prospectus in order that such registration
statement, prospectus, amendment or supplement, as the case may be, does
not contain an untrue statement of a material fact or omit to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(vi) promptly notify the selling holders of Registrable Securities,
the sales or placement agent, if any, therefor and the managing underwriter
or underwriters, if any, thereof and confirm such advice in writing, (A)
when such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Guarantor or the Trust contemplated by Section 3(b)(xv) or Section 5
cease to be true and correct in all material respects, (E) of the receipt
by the Guarantor or the Trust of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) at any time when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post-effective amendment
does not conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(vii) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, any
placement or sales agent or any holder of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regulations of the
Commission and as such managing underwriter or underwriters, such agent or
such holder specifies should be included therein relating to the terms of
the sale of such Registrable Securities, including information with respect
to the principal amount of Registrable Securities being sold by such holder
or agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities to
be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus
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supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Securities, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(b)(iv) an executed copy (or, in
the case of a holder of Registrable Securities, a conformed copy) of such
registration statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of a holder of Registrable
Securities, upon request) and documents incorporated by reference therein)
and such number of copies of such registration statement (excluding
exhibits thereto and documents incorporated by reference therein unless
specifically so requested by such holder, agent or underwriter, as the case
may be) and of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder, and such other documents, as such holder, agent,
if any, and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities owned
by such holder, offered or sold by such agent or underwritten by such
underwriter and to permit such holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the Guarantor
and the Trust hereby consent to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto
by each such holder and by any such agent and underwriter, in each case in
the form most recently provided to such person by the Guarantor or the
Trust, in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such preliminary and
summary prospectus) or any supplement or amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement under
such securities laws or blue sky laws of such United States jurisdictions
as any holder of such Registrable Securities and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions during the period the Shelf
Registration is required to remain effective under Section 2(b) above and
for so long as may be necessary to enable any such holder, agent or
underwriter to complete its distribution of Securities pursuant to such
registration statement but in any event not later than the date through
which the Guarantor and the Trust are required to keep the Shelf
Registration Effective pursuant to Section 2(b) and (C) take any and all
other actions as may be reasonably requested to enable each such holder,
agent, if any, and underwriter, if any, to consummate the disposition in
such jurisdictions of such Registrable Securities; provided, however, that
neither the Guarantor nor the Trust shall be required for any such purpose
to (1) qualify as a foreign corporation in any jurisdiction wherein it
would not otherwise be required to qualify but for the requirements of this
Section 3(b)(x), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(xi) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to be obtained by the Guarantor or the
Trust to effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or holders to offer,
or to consummate the disposition of, their Registrable Securities;
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(xii) cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall be printed, lithographed or engraved, or produced
by any combination of such methods, and which shall not bear any
restrictive legends, except as may be required by applicable law; and, in
the case of an underwritten offering, enable such Registrable Securities to
be in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
the Registrable Securities;
(xiii) provide a CUSIP number for all applicable Registrable
Securities, not later than the Effective Time;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provision agreed to
by the Guarantor relating to indemnification and contribution, and take
such other actions in connection therewith as any holders of Registrable
Securities aggregating at least 33 1/3% in aggregate principal amount of
the Registrable Securities at the time outstanding shall reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities; provided, that the Guarantor and the Trust shall not be
required to enter into any such agreement more than once with respect to
all of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public offering which
the Guarantor shall have then undertaken;
(xv) whether or not an agreement of the type referred to in Section
(3)(b)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent or any other entity,
(A) make such representations and warranties to the holders of such
Registrable Securities and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof in form, substance and scope as are
customarily made by the Guarantor in connection with an offering of debt
securities pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf Registration; (B)
obtain an opinion of counsel to the Guarantor and an opinion of counsel to
the Trust in each case in customary form and covering such matters, of the
type customarily covered by such an opinion, and in the case of the
Guarantor as customarily given in public offerings of the Guarantor's debt
securities as the managing underwriters, if any, or as any holders of at
least 25% in aggregate principal amount of the Registrable Securities at
the time outstanding may reasonably request, addressed to such holder or
holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
registration statement (and if such registration statement contemplates an
underwritten offering of a part or all of the Registrable Securities, dated
the date of the closing under the underwriting agreement relating thereto);
(C) obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Guarantor addressed to the selling
holders of Registrable Securities, the placement or sales agent, if any,
therefor or the underwriters, if any, thereof, dated (i) the effective date
of such registration statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such registration
statement or post-effective amendment to such registration statement which
includes audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such
prospectus (and, if such registration statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such registration statement or post-effective
amendment to such registration statement which includes
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unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such
prospectus, dated the date of the closing under the underwriting agreement
relating thereto), such letter or letters to be in customary form and
covering such matters of the type customarily covered by letters of such
type in public offerings of debt securities of the Guarantor; (D) deliver
such documents and certificates, including officers' or trustees' or
Administrative Trustees' certificates, as applicable, as may be reasonably
requested by any holders of at least 25% in aggregate principal amount of
the Registrable Securities at the time outstanding or the placement or
sales agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and warranties made
pursuant to clause (A) above or those contained in Section 5(a) hereof and
the compliance with or satisfaction of any agreements or conditions
contained in the underwriting agreement or other agreement entered into by
the Guarantor or the Trust, as applicable; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Guarantor and/or the Trust to amend or waive any provision
of this Registration Rights Agreement pursuant to Section 9(h) hereof and
of any amendment or waiver effected pursuant thereto, each of which notices
shall contain the text of the amendment or waiver proposed or effected, as
the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as
a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Conduct Practice and the
By-Laws of the National Association of Securities Dealers, Inc. ("NASD") or
any successor thereto, as amended from time to time) thereof, whether as a
holder of such Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist
such broker-dealer in complying with the requirements of such Rules and
By-Laws, including by (A) if such Rules shall so require, permitting a
"qualified independent underwriter" (as defined in such Schedule (or any
successor thereto)) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Conduct of
the NASD; and
(xviii) make generally available to its security holders as soon as
practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earning statement of the
Guarantor and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Guarantor, Rule 158
thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Guarantor or the Trust, such
obligation shall be subject to the provision of such information.
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(c) In the event that the Guarantor and the Trust would be required,
pursuant to Section 3(b)(vi)(F) above, to notify the selling holders of
Registrable Securities, the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof, the Guarantor and the Trust shall
promptly prepare and furnish to each such holder, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder
and shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing. Each holder
of Registrable Securities agrees that upon receipt of any notice from the
Guarantor or the Trust, pursuant to Section 3(b)(vi)(F) hereof, such holder
shall forthwith discontinue the disposition of Registrable Securities pursuant
to the registration statement applicable to such Registrable Securities until
such holder (i) shall have received copies of such amended or supplemented
prospectus and, if so directed by the Guarantor or the Trust, such holder shall
deliver to the Guarantor (at the Guarantor's expense) all copies, other than
permanent file copies, then in such holder's possession of the prospectus
covering such Registrable Securities at the time of receipt of such notice or
(ii) shall have received notice from the Guarantor or the Trust that the
disposition of Registrable Securities pursuant to the Shelf Registration may
continue.
(d) The Guarantor and the Trust may require each holder of Registrable
Securities as to which any registration pursuant to Section 2(b) is being
effected to furnish to the Guarantor such information regarding such holder and
such holder's intended method of distribution of such Registrable Securities as
the Guarantor and the Trust may from time to time reasonably request in
writing, but only to the extent that such information is required in order to
comply with the Securities Act. Each such holder agrees to notify the Guarantor
and the Trust as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to the Guarantor and the Trust
or of the occurrence of any event in either case as a result of which any
prospectus relating to such registration contains or would contain an untrue
statement of a material fact regarding such holder or such holder's intended
method of disposition of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
disposition of such Registrable Securities required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Guarantor and the
Trust any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to such holder or the disposition of such Registrable Securities,
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 in light of the circumstances then existing.
(e) Until the expiration of three years after the Closing Date, the
Guarantor will not, and will not permit any of its "affiliates" (as defined in
Rule 144) to, resell any of the Capital Securities or Debentures that have been
reacquired by any of them except pursuant to an effective registration
statement under the Act.
(f) In connection with the Guarantor's and the Trust's obligations with
respect to the registration of Exchange Securities as contemplated by Section
2(a) (the "Exchange Registration"), if applicable, the Guarantor and the Trust
shall, as soon as reasonably practicable (or as otherwise specified):
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(i) prepare and file with the Commission such amendments and
supplements to the Exchange Offer Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the
effectiveness thereof for the periods and purposes contemplated in Section
2(a) hereof and as may be required by the applicable rules and regulations
of the Commission and the instructions applicable to the form of the
Exchange Offer Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies of the
prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may request prior
to the expiration of the Resale Period, for use in connection with resales
of Exchange Securities;
(ii) promptly notify each broker-dealer that has requested or received
copies of the prospectus included in the Exchange Offer Registration
Statement, and confirm such advice in writing, (A) when the Exchange Offer
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and,
with respect to the Exchange Offer Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to the Exchange Offer Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Exchange Offer Registration Statement or the initiation or threatening of
any proceedings for that purpose, (D) if at any time the representations
and warranties of the Guarantor and/or the Trust contemplated by Section 5
cease to be true and correct in all material respects, (E) of the receipt
by the Guarantor or the Trust of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale in any
United States jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the Resale Period
when a prospectus is required to be delivered under the Securities Act,
that the Exchange Offer Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(iii) in the event that the Guarantor and the Trust would be required,
pursuant to Section 3(f)(ii)(F) above, to notify any broker-dealers holding
Exchange Securities, promptly prepare and furnish to each such holder a
reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder
and shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing or notify such broker-dealers that the date of Exchange Securities
pursuant to the Exchange Offer Registration Statement may continue.
(iv) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Exchange Offer Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
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(v) use its reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; provided, however, that neither the
Guarantor nor the Trust shall be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(f)(v), (2) consent to general service of process in any such jurisdiction
or (3) make any changes to its certificate of incorporation or by-laws or
any agreement between it and its stockholders;
(vi) use its reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to be obtained by the
Guarantor or the Trust to effect the Exchange Registration, the Exchange
Offer and the offering and sale of Exchange Securities by broker-dealers
during the Resale Period;
(vii) provide a CUSIP number for all applicable Exchange Securities,
not later than the applicable Effective Time;
(viii) make generally available to its security holders as soon as
practicable but no later than eighteen months after the effective date of
such registration statement, an earning statement of the Guarantor and its
subsidiaries complying with Section 11(a) of the Securities Act (including,
at the option of the Guarantor, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Guarantor or the Trust, such
obligation shall be subject to the provision of such information.
4. Registration Expenses.
The Guarantor agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Guarantor's and
the Trust's performance of or compliance with this Registration Rights
Agreement, including (a) all Commission and any NASD registration and filing
fees and expenses, (b) all fees and expenses in connection with the
qualification of the Securities or Exchange Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(b)(x) and
Section 3(f)(v) hereof, including reasonable fees and disbursements of one
counsel for the placement or sales agent or underwriters in connection with
such qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, the
certificates representing the Securities and all other documents relating
hereto, (d) messenger and delivery expenses, (e) fees and expenses of the
Trustee under the Indenture, the Property Trustee and Debenture Trustee under
the Trust Agreement and the Guarantee Trustee under the Guarantee and of any
escrow agent or custodian, (f) internal expenses (including all salaries and
expenses of the Guarantor's officers and employees performing legal or
accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Guarantor (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance
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and compliance) and (h) reasonable fees, disbursements and expenses of one
counsel for the holders of Registrable Securities retained in connection with a
Shelf Registration, as selected by the holders of at least a majority in
aggregate principal amount of the Registrable Securities being registered, and
fees, expenses and disbursements of any other persons, including special
experts, retained by the Guarantor in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof, the Guarantor shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
Each of the Guarantor and the Trust represents and warrants to, and agrees
with, the Purchasers and each of the holders from time to time of Registrable
Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(f) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and at all times subsequent to the Effective Time
when a prospectus would be required to be delivered under the Securities
Act, other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(b)(vi)(F) or Section
3(f)(ii)(F) hereof until (ii) such time as the Guarantor furnishes an
amended or supplemented prospectus pursuant to Section 3(c) or Section
3(f)(iii) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant
to Section 3(b) or Section 3(f) hereof, as then amended or supplemented,
will conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Guarantor and the Trust by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the
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statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Guarantor and the Trust by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Guarantor and the Trust with all of the
provisions of this Registration Rights Agreement and the consummation of
the transactions herein contemplated will not constitute a breach of or
default under, the corporate charter or by-laws of the Guarantor, or the
Trust Agreement of the Trust, or any material agreement, indenture or
instrument relating to indebtedness for money borrowed to which the
Guarantor or to the best knowledge of the Guarantor, the Trust is a party
or, to the best knowledge of the Guarantor, the Trust, as applicable, any
law, order, rule, regulation or decree of any court or governmental agency
or authority located in the United States having jurisdiction over the
Guarantor or any property of the Guarantor or the Trust or any property of
the Trust, as applicable; and, to the best knowledge of the Guarantor and
the Trust, no consent, authorization or order of, or filing or registration
with, any court or governmental agency or authority is required for the
consummation by the Guarantor or the Trust, as applicable, of the
transactions contemplated by this Registration Rights Agreement, except the
registration under the Securities Act contemplated hereby, qualification of
the Indenture, the Guarantee and the Trust Agreement under the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under State securities or "blue sky"
laws.
(d) This Registration Rights Agreement has been duly authorized,
executed and delivered by the Guarantor or the Trust, as applicable.
6. Indemnification.
(a) Indemnification by the Guarantor and the Trust. Upon the registration
of the Registrable Securities pursuant to Section 2(a) or 2(b) hereof, and in
consideration of the agreements of the Purchasers contained herein, and as an
inducement to the Purchasers to purchase the Capital Securities, each of the
Guarantor and the Trust shall, and it hereby agrees jointly and severally to,
indemnify and hold harmless each of the holders of Registrable Securities to be
included in such registration, and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such Registrable
Securities and each person who controls any such person against any losses,
claims, damages or liabilities, joint or several, to which such holder, agent
or underwriter may become subject under the Securities 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 an untrue statement or alleged untrue
statement of a material fact contained in any registration statement under
which such Registrable Securities were registered under the Securities Act, or
any preliminary, final or summary prospectus contained therein or furnished by
the Guarantor or the Trust to any such holder, agent or underwriter, or any
amendment 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 each of
the Guarantor and the Trust shall, and it hereby agrees jointly and severally
to, reimburse each such holder, such agent and such underwriter 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 Guarantor and the Trust shall not be liable to any such
person in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such
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registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Guarantor and the Trust by holders of
Registrable Securities expressly for use therein. This indemnity agreement
will be in addition to any liability which the Guarantor or the Trust may
otherwise have.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Guarantor and the Trust may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2(b) hereof and to entering into any underwriting agreement with respect
thereto, that the Guarantor and the Trust shall have received an undertaking
reasonably satisfactory to it from the holder of such Registrable Securities
and from each underwriter named in any such underwriting agreement, severally
and not jointly, to indemnify and hold harmless the Guarantor and the Trust,
each of the Guarantor's directors, and each person who controls the Guarantor
or the Trust within the meaning of either the Securities Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Guarantor and the
Trust, but only with reference to written information furnished to the
Guarantor and the Trust by or on behalf of such person specifically for use in
any registration statement, or any preliminary or final or summary prospectus
contained therein or any amendment or supplement thereto. This indemnity
agreement will be in addition to any liability which any such person may
otherwise have.
(c) Promptly after receipt by an indemnified party under Section 6(a)
or (b) of 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 such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under Section 6(a) or (b). In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided that, if the
defendants in 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, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under Section 8(a) or (b) for any legal or
other expenses subsequently incurred by such indemnified party (other than
reasonable costs of investigation) in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate national counsel, approved by the Representatives, representing the
indemnified parties who are parties to such action), (ii) 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
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause
(i) or (iii).
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(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by
such indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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 who was not guilty of such fraudulent
misrepresentation. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may
be, by them and not joint.
(e) The obligations of the Guarantor and the Trust under this Section 6
shall be in addition to any liability which the Guarantor and the Trust may
otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each holder, agent and underwriter and each
person, if any, who controls any holder, agent or underwriter within the
meaning of the Securities Act; and the obligations of the holders and any
agents or underwriters contemplated by this Section 6 shall be in addition to
any liability which the respective holder, agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Guarantor (including any person who, with his consent, is named
in any registration statement as about to become a director of the Guarantor),
to each Trustee and Administrative Trustee under the Trust Agreement and to
each person, if any, who controls the Guarantor and the Trust within the
meaning of the Securities Act.
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7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by the
holders of at least a majority in aggregate principal amount of the Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Guarantor.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. Rule 144.
The Guarantor covenants to the holders of Registrable Securities that the
Guarantor shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, and shall take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the Commission.
Upon the request of any holder of Registrable Securities in connection with
that holder's sale pursuant to Rule 144, the Guarantor shall deliver to such
holder a written statement as to whether it has complied with such
requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Guarantor and the Trust
represents, warrants, covenants and agrees that it has not granted, and shall
not grant, registration rights with respect to Registrable Securities which
would be inconsistent with the terms contained in this Exchange and
Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions
of this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail
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(registered or certified mail, postage prepaid, return receipt requested) as
follows: If to the Guarantor, to it at Cullen/Frost Bankers, Inc., 000 Xxxx
Xxxxxxx, Xxx Xxxxxxx, Xxxxx 00000, Attention: Secretary; and if to the Trust,
to it at Cullen/Frost Capital Trust I, c/o The Bank of New York (Delaware),
Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate
Trust Department; and if to a holder, to the address of such holder set forth
in the security register or other records of the Trust or the Guarantor, as the
case may be, or to such other address as the Guarantor, the Trust or any such
holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Registration
Rights Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the respective successors and assigns of the parties hereto.
In the event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a party hereto for all
purposes and such Registrable Securities shall be held subject to all of the
terms of this Registration Rights Agreement, and by taking and holding such
Registrable Securities such transferee shall be entitled to receive the
benefits of, and be conclusively deemed to have agreed to be bound by and to
perform, all of the applicable terms and provisions of this Registration Rights
Agreement.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Registration Rights
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made
by or on behalf of any holder of Registrable Securities, any director, officer
or partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Registration Rights Agreement are inserted for convenience
only, do not constitute a part of this Registration Rights Agreement and shall
not affect in any way the meaning or interpretation of this Registration Rights
Agreement.
(h) Entire Agreement; Amendments. This Registration Rights Agreement and
the other writings referred to herein (including the Trust Agreement, the
Guarantee and the Indenture) or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Registration Rights Agreement may be amended and the observance of
any term of this Registration Rights Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Guarantor, the Trust and the holders
of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities
at the time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder.
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(i) Inspection. For so long as this Registration Rights Agreement shall be
in effect, this Registration Rights Agreement and a complete list of the names
and addresses of all the holders of Registrable Securities shall be made
available for inspection and copying on any business day by any holder of
Registrable Securities for proper purposes only (which shall include any
purpose related to the rights of the holders of Registrable Securities under
the Securities, the Indenture and this Agreement) at the offices of the
Guarantor at the address thereof set forth in Section 9(c) above, at the office
of the Property Trustee or at the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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Agreed to and accepted as of the date referred to above.
CULLEN/FROST CAPITAL TRUST I
By: /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Administrative Trustee
CULLEN/FROST BANKERS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President &
Chief Financial Officer
X.X. Xxxxxx Securities Inc.
By: /s/ G. B. Xxxxxxxxxx
-----------------------------------------
(X.X. Xxxxxx Securities Inc.)
On behalf of each of the Purchasers
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