Exhibit 4.9
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 1, 1997
among
THE SOUTHERN COMPANY
SOUTHERN CAPITAL FUNDING, INC.
SOUTHERN COMPANY CAPITAL TRUST II
and
XXXXXX BROTHERS INC.
XXXXXXX, SACHS & CO.
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of February 1, 1997 among THE SOUTHERN COMPANY, a Delaware
corporation (the "Company") SOUTHERN COMPANY CAPITAL FUNDING, INC., a Delaware
corporation ("Capital"), SOUTHERN COMPANY CAPITAL TRUST II, a statutory business
trust formed under the laws of the State of Delaware (the "Trust"), and XXXXXX
BROTHERS INC. ("Xxxxxx Brothers") and XXXXXXX, XXXXX & CO. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated January 30, 1997 (the "Purchase Agreement"), among Capital, as issuer of
the 8.14% Junior Subordinated Deferrable Interest Notes due February 15, 2027
(the "Subordinated Notes"), the Company, the Trust and the Initial Purchasers,
which provides for among other things, the sale by the Trust to the Initial
Purchasers of $75,000,000 of the Trust's 8.14% Capital Securities, liquidation
amount of $1,000 per Capital Security (the "Capital Securities") the proceeds of
which will be used by the Trust to purchase Subordinated Notes. The Capital
Securities, together with the Subordinated Notes and the Company's guarantee of
the Capital Securities (the "Capital Securities Guarantee") and the Company's
guarantee of the Subordinated Notes (the "Notes Guarantee") are collectively
referred to as the "Securities." In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company and the Trust have agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Additional Distribution" shall have the meaning set forth in Section 2(e)
hereof.
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Advice" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
"Business Day" shall mean a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Indenture Trustee's
Corporate Trust Office or Property Trustee's principal corporate trust office is
closed for business.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Trust; provided however, that such depositary must
have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Offer" shall mean the offer by the Company and the Trust to the
Holders to exchange all of the Registrable Securities (other than Private
Exchange Securities) for a like principal amount of Exchange Securities pursuant
to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Exchange Securities" shall mean (i) with respect to the Subordinated
Notes, the 8.14% Junior Subordinated Deferrable Interest Notes due February 15,
2027 (the "Exchange Notes") containing terms identical to the Subordinated Notes
(except that they will not contain terms with respect to the transfer
restrictions under the Securities Act, will not require transfers thereof to be
in minimum blocks of $100,000 principal amount and will not provide for any
increase in the interest rate thereon), (ii) with respect to the Capital
Securities, the Trust's 8.14% Capital Securities, liquidation amount $1,000 per
Capital Security (the "Exchange Capital Securities") which will have terms
identical to the Capital Securities (except that they will not contain terms
with respect to transfer restrictions under the Securities Act, will not require
transfers thereof to be in minimum blocks of $100,000 principal amount and will
not provide for any increase in the distribution rate thereon), (iii) with
respect to the Capital Securities Guarantee, the Company's guarantee (the
"Exchange Capital Securities Guarantee") of the Exchange Capital Securities
which will have terms identical to the Capital Securities Guarantee and
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(iv) with respect to the Notes Guarantee, the Company's Guarantee (the "Exchange
Notes Guarantee") of the Exchange Notes which will have terms identical to the
Notes Guarantee.
"Holder" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture or Declaration of Trust.
"Indenture" shall mean the Indenture relating to the Subordinated Notes and
the Exchange Notes dated as of February 1, 1997 among the Company, Capital and
Bankers Trust Company, as the Indenture Trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean the date of original issuance of the Securities.
"Majority Holders" shall mean the Holders of a majority of the aggregate
liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Property Trustee" shall mean Bankers Trust Company, or any successor
thereto, as property trustee under the Trust Agreement.
"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 Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registration Default" shall have the meaning set forth in Section 2(e)
hereof.
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"Registrable Securities" shall mean the Securities; provided, however, that
Securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such Securities for the exchange thereof, shall have
been declared effective under the Securities Act and such Securities shall have
been disposed of pursuant to such Registration Statement, (ii) such Securities
shall have been sold to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the Securities Act, (iii) such
Securities shall have ceased to be outstanding or (iv) such Securities have been
exchanged from Exchange Securities upon consummation of the Exchange Offer and
are thereafter freely tradable by the holder thereof (other than an affiliate of
the Company).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities) and compliance with the rules of the NASD
in the amount not exceeding $15,000 in the aggregate, (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 Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for the
Company and of the independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by or incident to
such performance and compliance, (vi) the fees and expenses of the Trustees, and
any exchange agent or custodian, (vii) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges, and (viii) the reasonable fees and expenses of
any special experts retained by the Company in connection with Registration
Statement.
"Registration Statement" shall mean any registration statement of the
Company and the Trust which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Rule 144(k) Period" shall mean the period of three years (or such shorter
period as may hereafter be provided in Rule 144(k) under the Securities Act (or
similar successor rule)) commencing on the Issue Date.
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"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 and the Trust pursuant to the provisions of Section 2(b) hereof
which covers all of the Registrable Securities, on an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"TIA" shall have the meaning set forth in Section 3(1) hereof.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of February 1, 1997, by the trustees named therein and the Company as
sponsor.
"Trustees" shall mean any and all trustees with respect to (i) the Capital
Securities under the Trust Agreement, (ii) the Subordinated Notes and the Notes
Guarantee under the Indenture and (iii) the Capital Securities Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by any
applicable law or applicable interpretation of the staff of the SEC, the
Company, Capital and the Trust shall, for the benefit of the Holders, at the
Company's cost, use its reasonable best efforts to (i) cause to be filed with
the SEC within 150 days after the Issue Date an Exchange Offer Registration
Statement on an appropriate form under the Securities Act covering the Exchange
Offer, (ii) cause such Exchange Offer Registration Statement to be declared
effective under the Securities Act by the SEC not later than the date which is
180 days after the Issue Date, and (iii) keep such Exchange Offer Registration
Statement effective for not less than 30 calendar days (or longer if required by
applicable law) after the date notice of the Exchange Offer is mailed to the
Holders. Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Trust
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shall promptly commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder eligible and electing to exchange
Registrable Securities for a like principal amount of Exchange Notes or a like
liquidation amount of Exchange Capital Securities, together with the Exchange
Guarantee and the Notes Guarantee, as applicable (assuming that such Holder is
not an affiliate of the Company within the meaning of Rule 405 under the
Securities Act and is not a broker-dealer tendering Registrable Securities
acquired directly from the Company for its own account, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws.
In connection with the Exchange Offer, the Company, Capital
and the Trust shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of
not less than 30 days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day of the Exchange Period, by sending to the institution specified in
the notice, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of
Securities delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered by such
Holder in the Exchange Offer will remain outstanding and continue to
accrue interest or accumulate distributions, as the case may be, but
will not retain any rights under this Agreement (except in the case of
the Initial Purchasers and Participating Broker-Dealers as provided
herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company, Capital and the Trust, as the case requires, shall:
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(i) accept for exchange all Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the applicable Trustee
for cancellation all Securities or portions thereof so accepted for
exchange by the Company; and
(iii) issue, and cause the applicable Trustee under the
Indenture, the Declaration or the Guarantee, as applicable, to
promptly authenticate and deliver to each Holder, new Exchange
Securities equal in principal amount to the principal amount of the
Subordinated Notes or equal in liquidation amount of the liquidation
amount of the Capital Securities as are surrendered by such Holder.
Distributions on each Exchange Capital Security and interest
on each Exchange Debenture issued pursuant to the Registered Exchange Offer will
accrue from the last date on which a Distribution or interest was paid on the
Capital Security or the Subordinated Debenture surrendered in exchange therefor
or, if no Distribution or interest has been paid on such Capital Security or
Subordinated Debenture, from the Issue Date. To the extent not prohibited by any
law or applicable interpretation of the staff of the SEC, the Company, Capital
and the Trust shall use their reasonable best efforts to complete the Exchange
Offer as provided above, and shall comply with the applicable requirements of
the Securities Act, the Exchange Act and other applicable laws in connection
with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate applicable law
or any applicable interpretation of the staff of the SEC. Each Holder of
Registrable Securities who wishes to exchange such Registrable Securities for
Exchange Securities in the Exchange Offer will be required to make certain
customary representations in connection therewith, including, in the case of any
Holder of Capital Securities, representations that (i) it is not an affiliate of
the Trust, Capital or the Company, (ii) the Exchange Securities to be received
by it were acquired in the ordinary course of its business and (iii) at the time
of the Exchange Offer, it has no arrangement with any person to participate in
the distribution (within the meaning of the Securities Act) of the Exchange
Capital Securities. Each Holder hereby acknowledges and agrees that any
Participating Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the Exchange
Offer (1) could not under SEC policy as in effect on the date of this Agreement
rely on the position of the SEC enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available May
13, 1988), as interpreted in the SEC's letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters, and (2) must comply with the
registration and prospectus delivery requirements or the Securities Act in
connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Securities obtained
by such Holder in exchange for Securities acquired by such Holder directly from
the Trust, Capital or the Company.
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Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are
Exchange Securities held by Participating Broker-Dealers, and the Company and
the Trust shall have no further obligation to register the Registrable
Securities (other than pursuant to Section 2(b)(iii)) pursuant to Section 2(b)
of this Agreement.
(b) Shelf Registration. In the event that (i) the Company and
the Trust are not permitted to effect the Exchange Offer because of any change
in law or in currently prevailing interpretations of the staff of the SEC, (ii)
the Exchange Offer Registration Statement is not declared effective within 180
days of the Issue Date, (iii) upon the request of any Initial Purchaser with
respect to any Registrable Securities held by it, if such Initial Purchaser is
not permitted, in the reasonable opinion of Xxxxx Xxxxxxxxxx, pursuant to
applicable law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are freely
tradeable without restriction under the Securities Act and applicable blue sky
or state securities laws or (iv) if the Company has received an opinion of
counsel having a recognized national tax practice to the effect that, as a
result of the consummation of the Exchange Offer, there is more than an
insubstantial risk that (A) the Trust could be subject to United States federal
income tax with respect to income received or accrued on the Subordinated Notes
or Exchange Notes, (B) interest payable by the Company on the Subordinated Notes
or Exchange Notes would not be deductible by the Company, in whole or in part,
for United States income tax purposes, or (C) the Trust could be subject to more
than a de minimis amount of other taxes, duties or other governmental charges,
(any of the events specified in (i) - (iv) being a "Shelf Registration Event"
and the date of occurrence thereof, the "Shelf Registration Event Date"), the
Company, Capital and the Trust shall promptly deliver to the holders and the
Property Trustee written notice thereof and, at their cost, use their reasonable
best efforts to cause to be filed as promptly as practicable after such Shelf
Registration Event Date, as the case may be, and, in any event, within 45 days
after such Shelf Registration Event Date (which shall be no earlier than 75 days
after the Closing Time), a Shelf Registration Statement providing for the sale
by the Holders of all of the Registrable Securities, and shall use its
reasonable best efforts to have such Shelf Registration Statement declared
effective by the SEC as soon as practicable; provided, however, that if the
Shelf Registration Event is pursuant to clause (iii) the Company may register
such Registrable Securities together with the Exchange Offer Registration
Statement, filed pursuant to Section 2(a), and the requirements as to timing
applicable thereto. No Holder of Registrable Securities shall be entitled to
include any of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder agrees in writing to be bound by all
of the provisions of this Agreement applicable to such Holder and furnishes to
the Company, Capital and the Trust in writing, within 15 days after receipt of a
request therefor, such information as the Company, Capital and the Trust may,
after conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf Registration
Statement or Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein. Each Holder as
to which any Shelf Registration is being effected agrees
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promptly to furnish to the Company and the Trust all information with respect to
such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.
The Company, Capital and the Trust agree to use their
reasonable best efforts to keep the Shelf Registration Statement continuously
effective for the Rule 144(k) Period (subject to extension pursuant to the last
paragraph of Section 3 hereof) or for such shorter period which will terminate
when all of the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or cease
to be outstanding (the "Effectiveness Period"). The Company, Capital and the
Trust shall not permit any securities other than Registrable Securities to be
included in the Shelf Registration. The Company, Capital and the Trust will, in
the event a Shelf Registration Statement is declared effective, provide to each
Holder a reasonable number of copies of the Prospectus which is a part of the
Shelf Registration Statement, notify each such Holder when the Shelf
Registration has become effective. The Company, Capital and the Trust further
agree, if necessary, to supplement or amend the Shelf Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or by any other rules and regulations thereunder for shelf
registrations, and the Company, Capital and the Trust agree to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses
in connection with the registration pursuant to Section 2(a) or 2(b) hereof.
Except as provided herein, each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof (or a combination of the two) 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 Registerable Securities pursuant to a Shelf Registration Statement
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. The Company, Capital and the Trust
will be deemed not to have used their reasonable best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the requisite period
if either of them voluntarily take any action that would result in any such
Registration Statement not being declared effective or in the Holders of
Registrable Securities covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period unless such action is
required by applicable law.
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(e) Additional Interest and Distributions. In the event that
(i) (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is filed with the SEC on or prior to the
150th day after the Issue Date or (B) notwithstanding that the
Company, Capital and the Trust have consummated or will consummate an
Exchange Offer, the Company and the Trust are required to file a Shelf
Registration Statement and such Shelf Registration Statement is not
filed on or prior to the date required by Section 2(b) hereof, then
commencing on the day after the applicable required filing date,
additional interest shall accrue on the principal amount of the
Subordinated Notes ("Additional Interest"), and additional
distributions shall accumulate on the liquidation amount of the
Capital Securities ("Additional Distributions"), each at a rate of
0.25% per annum; or
(ii) (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the SEC on or
prior to the 30th day after the applicable required filing date or (B)
notwithstanding that the Company, Capital and the Trust have
consummated an Exchange Offer, the Company, Capital and the Trust are
required to file a Shelf Registration Statement and such Shelf
Registration Statement is not declared effective by the SEC on or
prior to the 30th day after the date such Shelf Registration Statement
was required to be filed, then, commencing on the 31st day after the
applicable required filing date, Additional Interest shall accrue on
the principal amount of the Subordinated Notes, and Additional
Distributions shall accumulate on the liquidation amount of the
Capital Securities, each at a rate of 0.25% per annum; or
(iii) (A) the Trust has not exchanged Exchange Capital Securities
for all Capital Securities, Capital has not exchanged the Exchange
Subordinated Notes for all Subordinated Notes or the Company has not
exchanged the Exchange Capital Securities Guarantee for the Guarantee
or has not Exchanged the Exchange Notes Guarantee for the Notes
Guarantee validly tendered in each case, in accordance with the terms
of the Exchange Offer on or prior to the 40th day after the date on
which the Exchange Offer Registration Statement was declared effective
or (B) if applicable, the Shelf Registration Statement has been
declared effective and such Shelf Registration Statement ceases to be
effective at any time prior to the expiration of the Rule 144(k)
Period (other than after such time as all Capital Securities have been
disposed of thereunder or otherwise cease to be Registrable
Securities), then Additional Interest shall accrue on the principal
amount of Subordinated Notes, and Additional Distributions shall
accumulate on the liquidation amount of the Capital Securities, each
at a rate of 0.25% per annum commencing on (x) the 41st day after such
effective date, in the case of (A) above, or (y) the day such Shelf
Registration Statement ceases to be effective in the case of (B)
above;
provided, however, that neither the Additional Interest rate on the Subordinated
Notes, nor the Additional Distribution rate on the liquidation amount of the
Capital Securities,
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may 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 Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), (3) upon the exchange
of Exchange Capital Securities, Exchange Capital Securities Guarantee, Exchange
Notes Guarantee and Exchange Subordinated Notes for all Capital Securities, the
Capital Securities Guarantee, the Notes Guarantee and all Subordinated Notes
tendered (in the case of clause (iii)(A) above), or upon the effectiveness of
the Shelf Registration Statement which had ceased to remain effective (in the
case of clause (iii)(B) above), or (4) upon the expiration of three years (or
such shorter period as may hereafter be provided in Rule 144(k) under the
Securities Act (or similar rule)) commencing on the date of original issuance of
the Securities, Additional Interest on the Subordinated Notes, and Additional
Distributions on the liquidation amount of the Capital Securities as a result of
such clause (or the relevant subclause thereof, as the case may be, shall cease
to accrue or accumulate, as the case may be.
Any amounts of Additional Interest and Additional
Distributions due pursuant to Section 2(e) (i), (ii) or (iii) above will be
payable in cash on the relevant payment dates for the payment of interest and
Distributions pursuant to the Indenture and the Declaration, respectively.
(f) Specific Enforcement. Without limiting the remedies
available to the Holders, the Company, Capital and the Trust acknowledge that
any failure by the Company, Capital or the Trust to comply with its obligations
under Section 2(a) and Section 2(b) hereof may result in material irreparable
injury to the Holders for which there is no adequate remedy at law, that it
would not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, any Holder may obtain such relief as may be
required to specifically enforce the Company's, Capital's and the Trust's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company, Capital and the Trust with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, each of the Company, Capital and the
Trust shall use their best reasonable efforts to:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form(s) under the Securities Act, which form(s) (i) shall
be selected by the Company, Capital and the Trust, (ii) shall, in the
case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (iii) shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the
SEC to be filed therewith; and use its reasonable best efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof; provided, however, that if (1) such
filing is pursuant to Section 2(b), or
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(2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company,
Capital and the Trust shall furnish to and afford the Holders of the
Registrable Securities and each such Participating Broker-Dealer, as
the case may be, covered by such Registration Statement, their counsel
and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents
to be incorporated by reference therein and all exhibits thereto)
proposed to be filed. The Company, Capital and the Trust shall not file
any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document if the
Majority Holders or such Participating Broker-Dealer, as the case may
be, their counsel or the managing underwriters, if any, shall
reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be, and
cause each Prospectus to be supplemented, if so determined by the
Company, Capital or the Trust or requested by the SEC, by any required
prospectus supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the Securities
Act, and comply with the provisions of the Securities Act, the Exchange
Act and the rules and regulations promulgated thereunder applicable to
it with respect to the disposition of all securities covered by each
Registration Statement during the 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);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities included in the Shelf Registration
Statement, at least three Business Days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is
being filed and advising such Holder that the distribution of
Registrable Securities will be made in accordance with the method
selected by the Majority Holders; (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration Statement and
to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities; (iii) consent to the use of
the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus
12
or any amendment or supplement thereto; and (iv) furnish to each Holder
of Registrable Securities either a summary of the terms of this
Agreement or a copy of this Agreement;
(d) in the case of a Shelf Registration, cooperate with the
Trustee to register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by
the time the applicable Registration Statement is declared effective by
the SEC as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering
of Registrable Securities shall reasonably request in writing in
advance of such date of effectiveness; provided, however, that the
Company, Capital and the Trust shall not be required to (i) qualify as
a foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process in
any jurisdiction where it would not otherwise be subject to such
service of process or (iii) file annual reports or comply with any
other requirements deemed by the Company to be unduly burdensome;
(e) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers from whom the Company or the Trust has
received prior written notice that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, are seeking to sell Exchange
Securities and are required to deliver Prospectuses, notify each Holder
of Registrable Securities, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters, if any,
promptly and promptly confirm such notice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement or Prospectus or for additional
information after the Registration Statement has become effective,
(iii) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of a Registration Statement
or the qualification of the Registrable Securities or the Exchange
Securities to he offered or sold by any Participating Broker-Dealer in
any jurisdiction described in paragraph 3(d) hereof or the initiation
of any proceedings for that purpose, (iv) in the case of a Shelf
Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company, Capital and
the Trust contained in any purchase agreement, securities sales
agreement or other similar agreement, if any cease to be true and
correct in all material respects, and (v) of the happening of any event
or the failure of any event to occur or the discovery of any facts or
otherwise, during the Effectiveness Period which makes any statement
made in such Registration Statement or the related Prospectus untrue in
any material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (vi) the Company's, Capital's
13
and the Trust's reasonable determination that a post-effective
amendment to the Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities included within the coverage of such
Shelf Registration Statement, without charge, 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);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and in
such denominations (consistent with the provisions of the Indenture and
the Trust Agreement) and registered in such names as the selling
Holders or the underwriters may reasonably request at least two
Business Days prior to the closing of any sale of Registrable
Securities pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and
each Holder hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable time
prior to the filing of any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after the
initial filing of a Registration Statement, provide a reasonable number
of copies of such document to the Holders; and make such of the
representatives of the Company and the Trust as shall be reasonably
requested by the Holders of Registrable Securities or the Initial
Purchasers on behalf of such Holders available for reasonable
discussion of such document;
14
(k) obtain a CUSIP number for all Exchange Capital Securities
and the Capital Securities (and if the Trust has made a distribution of
the Subordinated Notes to the Holders of the Capital Securities, the
Subordinated Notes or the Exchange Subordinated Notes), as the case may
be, not later than the effective date of a Registration Statement, and
provide the relevant Trustee with printed certificates for the Exchange
Securities or the Registrable Securities, as the case may be, in a form
eligible for deposit with the Depositary;
(l) cause the Indenture, the Trust Agreement, the Guarantee,
the Notes Guarantee and the Exchange Guarantee to be qualified under
the Trust Indenture Act of 1939 (the "TIA") in connection with the
registration of the Exchange Securities or Registrable Securities, as
the case may be, and effect such changes to such documents as may be
required for them to be so qualified in accordance with the terms of
the TIA and execute, and use its reasonable best efforts to cause the
relevant trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be filed
with the SEC to enable such documents to be so qualified in a timely
manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten offerings and consistent with the terms of the Purchase
Agreement and take all such other appropriate actions as are reasonably
requested in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into and whether or
not the registration is an underwritten registration, if requested by
(x) any Initial Purchaser, in the case where an Initial Purchaser holds
Securities acquired by it as part of its initial distribution and (y)
other Holders of Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business
of the Trust, the Company, Capital and its subsidiaries as then
conducted and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company, Capital and the Trust
and updates thereof (which may be in the form of a reliance letter) in
form and substance reasonably satisfactory to the managing underwriters
(if any) and the Holders of a majority in principal amount of the
Registrable Securities being sold, addressed to each selling Holder and
the underwriters (if any) covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such underwriters (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions); (iii) obtain "cold comfort" letters and
updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants
of the Company, Capital and the Trust (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Company, Capital and the
15
Trust or of any business acquired by the Company and the Trust for
which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as reasonably
requested by such underwriters in accordance with Statement on Auditing
Standards No. 72; and (iv) if an underwriting agreement is entered
into, 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 Securities covered by such
Registration Statement and the managing underwriters or agents) with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders).
The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder and as
consistent with the terms of the Purchase Agreement;
(n) if (1) a Shelf Registration is filed pursuant to Section
2(h) or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities during the Applicable Period, make
reasonably available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any
such disposition of Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Trust, Capital, the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Trust, the Company, Capital and its subsidiaries to
supply all relevant information in each case reasonably requested by
any such Inspector in connection with such Registration Statement
provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Purchasers by you and
on behalf of the other parties, by one counsel designated by you and on
behalf of such other parties as described in Section 2(c) hereof.
Records which the Company, Capital and the Trust determine, in good
faith, to be confidential and any records which it notifies the
Inspectors are confidential shall not he disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is
necessary in connection with any action, suit or proceeding or (iii)
the information in such Records has been made generally available to
the public.
16
Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree in writing that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Trust, Capital or the
Company unless and until such is made generally available to the
public. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to agree in writing
that information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Trust or the Company
unless and until such is made generally available to the public. Each
selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further agree in
writing that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company
and allow the Company at its expense to undertake appropriate action to
prevent disclosure of the Records deemed confidential;
(o) comply 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 II(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods;
(p) upon consummation of an Exchange Offer, if requested by a
Trustee, obtain an opinion of counsel to the Company addressed to the
relevant Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer and which includes an
opinion that (i) the Company, Capital and the Trust, as the case
requires, has duly authorized, executed and delivered the Exchange
Securities, and (ii) each of the Exchange Securities constitutes a
legal, valid and binding obligation of the Company, Capital or the
Trust, as the case requires, enforceable against the Company or the
Trust, as the case requires, in accordance with its respective terms
(in each case, with customary exceptions);
(q) if an Exchange Offer is to be consummated, upon delivery
of the Registrable Securities by Holders to the Company, Capital or the
Trust, as applicable (or to such other Person as directed by the
Company or the Trust, respectively), in exchange for the Exchange
Securities, the Company or the Trust, as applicable, shall xxxx, or
cause to be marked, on such Registrable Securities delivered by such
Holders that such Registrable Securities are being cancelled in
17
exchange for the Exchange Securities in no event shall such Registrable
Securities be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD;
(s) use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) indicate in a "Plan of Distribution" section contained in
the Prospectus contained in the Exchange Offer Registration Statement
that any broker or dealer registered under the Exchange Act who holds
Securities that are Registrable Securities and that were acquired for
its own account as a result of market-making activities or other
trading activities (other than Registrable Securities acquired directly
from the Company and the Trust) (such broker or dealer, a
"Participating Broker-Dealer"), may exchange such Securities pursuant
to the Exchange Offer; however, such Participating Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of
the Securities Act in connection with any resales of the Exchange
Securities received by such Participating Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Participating Broker-Dealer of the Prospectus
contained in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information with
respect to such resales by Participating Broker-Dealers that the
Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such
Participating Broker-Dealer or disclose the amount of Exchange
Securities held by any such Participating Broker-Dealer except to the
extent required by the Commission as a result of a change in policy
announced after the date of this Agreement, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably request
(each of the Company, Capital and the Trust hereby consents to be the
use of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Person subject
to the prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, in connection with the sale
or transfer of the Exchange Securities covered by the Prospectus or any
amendment of supplement thereto), (iii) use its reasonable best efforts
to keep the Exchange Offer Registration Statement effective and to
amend and supplement the Prospectus contained therein in order to
permit such Prospectus to be lawfully
18
delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such
Persons must comply with such requirements under the Securities Act and
applicable rules and regulations in order to resell the Exchange
Securities; provided, however, that such period shall not be required
to exceed 90 days (or such longer period if extended pursuant to the
last sentence of Section 3 hereof) (the "Applicable Period"), and (iv)
include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Exchange
Offer (x) the following provision:
"It the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Securities, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement,
the Company, Capital and the Trust agree to deliver to the Initial
Purchasers or to another representative of the Participating
Broker-Dealers, if requested by any such Initial Purchasers or such
other representative of the Participating Broker-Dealers, on behalf of
the Participating Broker-Dealers upon consummation of the Exchange
Offer (i) an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchasers or such other representative of
the Participating Broker-Dealers, covering the matters customarily
covered in opinions requested in connection with Exchange Offer
Registration Statements and such other matters as may be reasonably
requested (it being agreed that the matters to be covered by such
opinion may be subject to customary qualifications and exceptions),
(ii) an officer's certificate containing certifications substantially
similar to those set forth in Section 5(d) of the Purchase Agreement
and such additional certifications as are customarily delivered in a
public offering of debt securities and (iii) as well as upon the
effectiveness of the Exchange Offer Registration Statement, a comfort
letter, in each case, in customary form if permitted by Statement on
Auditing Standards No. 72. Each of the foregoing shall be consistent
with the terms of the Purchase Agreement.
The Company, Capital or the Trust may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company, Capital or the Trust, as applicable, such information regarding such
seller as may be required by the staff of the SEC to be included in a
Registration Statement. The
19
Company, Capital or the Trust may exclude from such registration the Registrable
Securities 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 Securities of a
seller who so fails to furnish such information.
In the case of (1) a Shelf Registration Statement or (2)
Participating Broker-Dealers who have notified the Company, Capital and the
Trust that they will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, are seeking to sell
Exchange Securities and are required to deliver Prospectuses, each Holder agrees
that, upon receipt of any notice from the Company, Capital or the Trust of the
happening of any event of the kind described in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Company, Capital and the Trust that the use of the applicable
Prospectus may be resumed, and, if so directed by the Company, Capital and the
Trust, such Holder will deliver to the Company, Capital or the Trust (at the
Company's, Capital's or the Trust's expense, as the case requires) all copies in
such Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities or Exchange
Securities, as the case may be, current at the time of receipt of such notice.
If the Company, Capital or the Trust shall give any such notice to suspend the
disposition of Registrable Securities or Exchange Securities, as the case may
be, pursuant to a Registration Statement, the Company, Capital and the Trust
shall use their best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the Registration
Statement and shall extend the period during which such Registration Statement
shall be maintained effective 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, Capital and the Trust shall have made
available to the Holders (x) copies of the supplemented or amended Prospectus
necessary to resume such dispositions or (y) the Advice.
4. Indemnification.
(a) In connection with any Registration Statement, the
Company, Capital and the Trust shall, jointly and severally, indemnify and hold
harmless each Initial Purchaser, each Holder, each underwriter who participates
in an offering of the Registrable Securities, each Participating Broker-Dealer,
and each Person, if any, who controls any of such parties within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (each an
"Indemnified Party") as follows:
(i) from and against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act or otherwise, and to reimburse the
Indemnified Party for any legal or other expenses incurred by them in
connection with defending any actions,
20
insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or the
Prospectus as amended or supplemented, or arise out of or are based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission which was
made in such Prospectus, or the Prospectus as amended or supplemented,
in reliance upon and in conformity with information furnished in
writing to the Company by such Indemnified Party for use therein and
except that this indemnity with respect to the Prospectus if the
Company shall have furnished any amendment or supplement thereto, shall
not inure to the benefit of any Indemnified Party on account of any
losses, claims, damages, liabilities or actions arising from the sale
of Registrable Securities to any person if a copy of the Prospectus, as
the same may then be amended or supplemented, shall not have been sent
or given by or on behalf of such Indemnified Party to such person with
or prior to the written confirmation of the sale involved. Each
Indemnified Party shall agree, that within ten days after the receipt
by it of notice of the commencement of any action in respect of which
indemnity may be sought by it, or by any person controlling it, from
the Company on account of its agreement contained in this Section 4, to
notify the Company in writing of the commencement thereof, but the
omission of such Indemnified Party so to notify the Company of any such
action shall not release the Company from any liability which it may
have to such Indemnified Party or to such controlling person otherwise
than on account of the indemnity agreement contained in this Section 4.
ln case any such action shall he brought against any Indemnified Party
or any such person controlling such Indemnified Party shall notify the
Company of the commencement thereof, as above provided, the Company
shall be entitled to participate in (and, to the extent that it shall
wish, including the selection of counsel, to direct) the defense
thereof at its own expense. In case the Company elects to direct such
defense and select such counsel, any Indemnified Party or controlling
person shall have the right to employ its own counsel, but, in any such
case, the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or controlling person unless the employment of
such counsel has been authorized in writing by the Company in
connection with defending such action.
The Company's indemnity agreement contained in this Section 4,
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Indemnified Party or controlling person, and shall survive the
registration of the Registrable Securities.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, Capital, the Trust, any underwriter and
the other selling Holders and each of their respective directors, officers
(including each officer of the Company, Capital and the Trust who signed the
Registration Statement), employees and
21
agents and each Person, if any, who controls the Company, Capital, the Trust,
any underwriter or any other selling Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all loss, liability, claim, damage and expense whatsoever described in the
indemnity contained in Section 4(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company, Capital or the Trust by such
selling Holder with respect to such Holder expressly for use in the Registration
Statement (or any amendment thereto), or any such Prospectus (or any amendment
or supplement thereto); provided, however, that, in the case of Shelf
Registration Statement, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) The Company shall give notice to each Indemnifying Party
of any action commenced against it in respect of which indemnity may be sought
hereunder in accordance with the terms of, and have the same effect as in
Section 4(a).
5. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
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 (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
Securities covered by the Shelf Registration Statement who desire to do so may
sell the securities covered by such Shelf Registration in an underwritten
offering. 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
Securities included in such offering; provided, however, that such underwriters
and managers must be reasonably satisfactory to the Company, Capital and the
Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company,
Capital or the Trust is subject to the reporting requirements of Section 13 or
15 of the Exchange Act and any Registrable Securities remain outstanding, the
Company, Capital and the Trust, as the case may be, will use their reasonable
best efforts to file the reports required to be filed by it under the Securities
Act and Section 13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable Securities (a)
make publicly available such information as is necessary to
22
permit sales of their securities pursuant to Rule 144 under the Securities Act,
(b) deliver such information to prospective purchaser as is necessary to permit
sales of their securities pursuant to Rule 144A under the Securities Act and it
will take such further action as any Holder of Registrable Securities may
reasonably request, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such rule may be amended from time to time, (ii)
Rule 144A under the Securities Act, as such rule may be amended from time to
time, or (iii) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the Company, Capital
and the Trusts will deliver to such Holder a written statement as to whether it
has complied with such requirements.
(b) No Inconsistent Agreements. The Company, Capital or the
Trust has not entered into nor will the Company, Capital or the Trust on or
after the date of this Agreement enter into any agreement which is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's, Capital's
or the Trust's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be an amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company, Capital and the Trust have obtained the
written consent of Holders of at least a majority in aggregate principal amount
of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure; provided no departure with
respect to the provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Securities. Notwithstanding the foregoing sentence, (i)
this Agreement may be amended, without the consent of any Holder of Registrable
Securities, by written agreement signed by the Company, Capital, the Trust and
Xxxxxx Brothers, 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, Capital, the Trust and
Xxxxxx Brothers to the extent that any such amendment, modification, supplement,
waiver or consent is, in their reasonable judgment, necessary or appropriate to
comply with applicable law (including any interpretation of the Staff of the
SEC) or any change therein and (iii) to the extent any provision of this
Agreement relates to the Initial Purchasers, such provision may be amended,
modified or supplemented, and waivers or consents to departures from such
provisions may he given, by written agreement signed by Xxxxxx Brothers, the
Company, Capital and the Trust.
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(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company or the Trust by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect to the
Initial Purchasers, the address set forth in the Purchase Agreement; and (ii) if
to the Company or the Trust, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied: and
on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other 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 Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. Each of the Initial Purchasers
shall be a third party beneficiary of the agreements made hereunder between the
Company, Capital and the Trust, on the one hand, and the Holders, on the other
hand, and shall have the right to enforce such 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.
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(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company, the Trust or its
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company, Capital, the Trust or its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
THE SOUTHERN COMPANY
By:
Name:
Title:
SOUTHERN COMPANY CAPITAL
FUNDING, INC.
By:
Name:
Title:
SOUTHERN COMPANY CAPITAL
TRUST II
By:
Name:
Title:
Confirmed and accepted as of
the date first above
written:
XXXXXX BROTHERS INC.
XXXXXXX, XXXXX & CO.
By: XXXXXX BROTHERS INC.
as Representative of the
Several Initial Purchasers
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