XXXXX CAPITAL
8-5/8% Trust Preferred Securities
guaranteed by Xxxxx National Corporation
REGISTRATION RIGHTS AGREEMENT
December 13, 1996
XXXXXX, READ & CO. INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
c/x Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxx Capital, a statutory business trust formed under the laws of
the State of Delaware (the "Trust") by Xxxxx National Corporation, a Delaware
corporation ("the Company"), as sponsor, proposes to issue and sell to Xxxxxx,
Read & Co. Inc. ("Xxxxxx, Read") and Friedman, Billings, Xxxxxx & Co.,
Inc.(the "Initial Purchasers"), upon the terms set forth in a purchase agreement
dated December 10, 1996 (the "Purchase Agreement"), among the Initial
Purchasers, the Company and the Trust, 8-5/8% Trust Preferred Securities
(Liquidation Amount $1,000 per Trust Preferred Security), (the "Preferred
Securities") (the "Initial Placement"). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Initial Purchasers thereunder, the Trust and
the Company agree with you, (i) for the benefit of the Initial Purchasers and
(ii) for the benefit of the holders from time to time of the Preferred
Securities the 8-5/8% Junior Subordinated Deferrable Interest Debentures Due
2026 (the "Debentures", and together with the Guarantee of the Company of the
Preferred Securities, the "Registrable Securities"), including the Initial
Purchasers (each of the foregoing, a "Holder" and, together, the "Holders"), as
follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in pursuant to the Purchase
Agreement or the Offering Memorandum dated December 10, 1996, in respect of the
Preferred Securities, as applicable. All references to Sections herein are to
Sections of this Agreement unless otherwise indicated. As used in this
Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as
amended.
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"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
"Company Offering" means the sale of Common Stock pursuant to a
registration statement filed by the Company under the Act (other than (i) a
registration statement filed on Form S-4 or any successor form or (ii) a
registration statement filed on Form S-8 or any successor form) respecting an
underwritten offering, whether primary or secondary, that is declared effective
by the Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Indenture" means the Indenture of even date herewith between the Company
and The Bank of New York, as trustee, providing for the issuance of the
Debentures.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
as set forth in Section 6.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities.
"Shelf Registration" means a registration effected pursuant to Section 2.
"Shelf Registration Statement" means a shelf registration statement of the
Trust and the Company pursuant to the provisions of Section 2 filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including
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post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Trust Agreement" means the Amended and Restated Trust Agreement of
even date herewith executed by the Company, as sponsor of the Trust, and
the initial trustees of the Trust (the "Issuer Trustees"), as the same will
be amended and restated in its entirety by the Company, the Issuer
Trustees, The Bank of New York, as property trustee, and The Bank of New
York (Delaware trustee, providing for the issuance of the Trust
Securities.
"Underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. SHELF REGISTRATION. (a) The Trust and the Company shall, within 60
days following the date of original issuance (the "Issue Date") of the
Preferred Securities, file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders from
time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement and, thereafter,
shall each use their reasonable best efforts to cause such Shelf Registration
Statement to be declared effective under the Act within 120 calendar days
following the Issue Date; provided, however, that no Holder shall be entitled to
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have the Registrable Securities held by it covered by such Shelf Registration
unless such Holder is in compliance with Section 3(m).
(b) The Trust and the Company shall each use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the Prospectus forming part thereof to be usable by Holders for the
period of three years from the date the Shelf Registration Statement is declared
effective or such shorter period that will terminate upon the earliest of the
following: (A) when all the Preferred Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement, (B) when all Debentures issued to Holders in respect of Preferred
Securities that had not been sold pursuant to the Shelf Registration Statement,
if any, have been sold pursuant to the Shelf Registration Statement and (C)
when, in the written opinion of counsel to the Trust and the Company, all
outstanding Registrable Securities held by persons that are not affiliates of
the Trust or the Company may be resold without registration under the Act
pursuant to Rule 144(k) under the Act or any successor provision thereto or any
successor provision thereto or any other applicable law, rule, or regulation,
whether now in effect or hereinafter promulgated, adopted or issued (in any such
case, such period being called the "Effectiveness Period").
(c) In the event that a Shelf Registration Statement with respect to
the Registrable Securities is not (i) filed on or prior to the 60th calendar day
following the Issue Date or (ii) declared effective on or prior to the 120th
calendar day following the Issue Date (each, a "Registration Default"), the
interest rate borne by the Debentures and, accordingly, the distribution rate
borne by the Preferred Securities shall be increase by one-quarter of one
percent (0.25%) per annum, from and including the day following Registration
Default to
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and including the 60th day following such Registration Default and by one-half
of one percent (0.50%) thereof from and after the 61st day following such
Registration Default. Upon (x) the filing of the Shelf Registration Statement
after the 60-day period described in clause (i) above or (y) the effectiveness
of the Shelf Registration Statement after the 120-day period described in clause
(ii) above, the interest rate borne by the Debentures and, accordingly, the
distribution rate borne by the Preferred Securities from the date of such filing
or effectiveness, as the case may be, will be reduced to the original rate in
respect of all periods thereafter. In the event that the Shelf Registration
Statement ceases to be effective during the Effectiveness Period for more than
60 days, whether or not consecutive, during any 12-month period, then the
interest rate borne by the Debentures (and, accordingly, the distribution rate
borne by the Preferred Securities) will increase by one-half of one percent
(0.50%) per annum from the 61st day until such time as the Shelf Registration
Statement again becomes effective. At no time will the interest rate borne by
the Debentures be increased by an amount in excess of one-half of one percent
(0.50%) pursuant to the provisions of this Agreement. Any interest payments
contemplated by this Section 2(c) shall be made semi-annually in arrears, with
the first payment due on the first interest payment date following the date on
which the Registration Penalty begins to accrue, pursuant to the terms of the
Indenture and the Trust Agreement.
(d) The Trust and the Company shall be deemed not to have used their
reasonable best efforts to keep the Shelf Registration Statement effective
during the requisite period if either the Trust or the Company voluntarily takes
any action that would result in Holders of Registrable Securities covered
thereby not being able to offer and sell any such Registrable Securities during
that period, unless (i) such action is required by applicable law or (ii) upon
the occurrence of any event contemplated by paragraph 3(c)(2)(iii) below, and
such action is taken by the Trust or the Company in good faith and for valid
business reasons; provided that, in the case of clause (ii) above, the Trust and
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the Company thereafter promptly comply with the requirements of Section 3(i)
below.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to the Initial Purchasers
and their counsel, prior to the filing thereof with the Commission, a copy
of any Shelf Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein and
shall reflect in each such document, when so filed with the Commission, such
comments as the Initial Purchasers and such counsel reasonably may propose.
(b) The Trust and the Company shall take such action as may be necessary
so that (i) any Shelf Registration Statement, and any amendment thereto, and
any Prospectus forming part thereof, and any amendment or supplement thereto
(and each report or other document incorporated therein by reference in each
case) complies in all material respects with the Securities Act and the
Exchange Act and the respective rules and regulations thereunder, (ii) any
Shelf Registration Statement, and any amendment thereto, does not, when it
becomes effective, contain an untrue statement.
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of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any amendment
or supplement to such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were made, not
misleading.
(c) (1) The Company shall notify the Initial Purchasers and, in the case
of clause (i) of this Section 3(c), the Holders in writing:
(i) when a Shelf Registration Statement, and any amendment
thereto, has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therin or for additional information.
(2) The Company shall notify the Initial Purchasers and the Holders in
writing of:
(i) the issuance by the Commission of any stop order suspending
effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose:
(ii) the receipt by the Trust or the Company of any
notification with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(iii) the happening of any event that requires the making of
any changes in the Shelf Registration Statement or the Prospectus so that
the Shelf Registration Statement and the Prospectus do not contain an
untrue statement of a material fact and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which notice shall be
accompanied by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(d) The Company shall use its reasonable best efforts to prevent the
issuance, and, if issued, to obtain the withdrawal, of any order suspending the
effectiveness of any Shelf Registration Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of
Registrable Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective
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amendments thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all reports and other documents incorporated by
reference in the Shelf Registration Statement and exhibits (including those
incorporated by reference).
(f) The Trust and the Company shall, during the Effectiveness Period,
deliver to each Holder of Registrable Securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of the
Prospectus included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request; and each of the Trust
and the Company consents (except upon and during the continuance of any event
described in paragraphs 2(d) or 3(c)(2)(iii) above) to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto during the Effectiveness Period.
(g) Prior to any offering of Registrable Securities pursuant to any Shelf
Registration Statement, the Trust and the Company shall register or qualify or
cooperate with the Holders of Registrable Securities included therein and their
respective counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions in the United States as any such Holders reasonably
request in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Registrable
Securities covered by such Shelf Registration Statement; provided that the
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Company shall not be required to (i) qualify as a foreign corporation, (ii)
consent to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the Registrable
Securities), (iii) subject to taxation in any such jurisdiction or (iv) make any
change to its certificate of incorporation or by-laws in connection with such
qualification.
(h) Unless the Registrable Securities shall be in book-entry only form,
the Trust and the Company shall cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such permitted
denominations and registered in such names as Holders may request in connection
with the sale of Registrable Securities pursuant to such Shelf Registration
Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Trust and the Company shall promptly prepare a
post-effective amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to purchasers of the Registrable Securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except, in each case, for an untrue statement
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of a material fact or omission of a material fact made in reliance on and in
conformity with written information furnished to the Company or the Trust by or
on behalf of Holders specifically for use therein). The Trust and the Company
agree to notify the Holders to suspend use of the Prospectus, and the Holders
shall suspend use of the Prospectus, and not communicate such material
non-public information to any third party, and not sell or purchase, or offer to
sell or purchase, any securities of the Trust or the Company, until the Trust or
the Company has amended or supplemented the Prospectus so it does not contain
any such misstatement or omission. Subject to Section 2(d), at such time as
such public disclosure is otherwise made or the Trust and the Company determine
in good faith that such disclosure is not necessary, the Trust and the Company
agree to notify the Holders of such determination and to amend or supplement
the Prospectus if necessary, so it does not contain any such untrue statement or
omission therein and to furnish the Holders such numbers of copies of the
Prospectus as so amended or supplemented as the Holders may reasonably request.
(j) Not later than the effective date of any Shelf Registration Statement
hereunder, the Trust and the Company shall provide a CUSIP number for the
Preferred Securities registered under such Shelf Registration Statement; in the
event of and at the time of any distribution of the Debentures to Holders, the
Company shall provide a CUSIP number for the Debentures and provide the
applicable trustee with certificates for such Registrable Securities, in a form
eligible for deposit with DTC (to the extent that such Registrable Securities
are so eligible).
(k) The Trust and the Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to their
security holders or otherwise provide in accordance with Section 11(a) of the
Securities Act as soon as practicable after the effective date of the applicable
Shelf Registration Statement an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act.
(l) The Trust and the Company shall qualify the Indenture, the Trust
Agreement and the Preferred Securities Guarantee Agreement under the Trust
Indenture Act in a timely manner.
(m) The Trust and the Company may require each Holder of Registrable
Securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Trust and the Company such information regarding the Holder and the
distribution of such Registrable Securities as the Trust and the Company may
from time to time reasonably require for inclusion in such Shelf Registration
Statement and the Company and the Trust may exclude from such registration the
Registrable Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(n) The Trust and the Company will each use their reasonable best efforts
to cause the Preferred Securities to be listed on the New York Stock Exchange or
other
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national securities exchange (which shall include the Nasdaq National
Market System) on or prior to the effective date of any Shelf Registration
Statement hereunder.
(o) The Trust and the Company shall take all other steps necessary
to effect the registration, offering and sale of the Registrable Securities
covered by the Shelf Registration Statement contemplated hereby.
4. REGISTRATION EXPENSES. Except as otherwise provided in Section 6,
the Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2 and 3 and shall bear or
reimburse the Holders for the reasonable fees and disbursements of one firm of
counsel designated by the Initial Purchasers on behalf of the Holders and
reasonably acceptable to the Company to act as counsel for the Holders in
connection therewith.
5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any Shelf
Registration Statement, the Company and the Trust, jointly and severally, agree
to indemnify, defend and hold harmless the Initial Purchasers, each Holder, each
Underwriter who participates in an offering of Registrable Securities and each
person, if any, who controls any such party within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act from and against any loss, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Initial Purchaser or controlling person may incur
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Shelf Registration Statement (or any amendment
thereto) covering Registrable Securities, including all documents incorporated
therein by reference, or, arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated therein or necessary to
make the statements made therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as any such loss, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by or on behalf of any Initial Purchaser, such Holder or any Underwriter
participating in an offering of Registrable Securities to the Company expressly
for use with reference to the Initial Purchasers, such Holder or such
Underwriter, as the case may be, in the Shelf Registration Statement (or
amendment thereto) or in the Prospectus (or any amendment or supplement
thereto) or arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information necessary to make such
information not misleading, provided that the foregoing indemnification with
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respect to any preliminary prospectus shall not inure to the benefit of any
Initial Purchaser, Holder or Underwriter participating in an offering of
Registrable Securities (or any person controlling such Initial Purchaser) from
whom the person asserting any such losses, claims, damages or liabilities
purchased any of the Registrable Securities if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Initial
Purchasers, such Holder or such Underwriter on the resale to such person, if
such is required by law, at or
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prior to the written confirmation of the sale of such Registrable Securities to
such person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, unless
such failure resulted from non-compliance by the Company with Sections 3(c)(2)
and 3(i). For purposes of the last proviso the immediately preceding sentence,
the term "Prospectus" shall not be deemed to include the documents incorporated
therein by reference, and no Initial Purchaser, Holder or Underwriter
participating in an offering of Registrable Securities shall be obligated to
send or give any supplement or amendment to any document incorporated by
reference in any preliminary prospectus or Prospectus to any person.
(b) Each Holder severally agrees to indemnify, defend and hold harmless the
Company, the Trust, the Initial Purchasers, each Underwriter who participates in
an offering of Registrable Securities and the other selling Holders, each
officer and director of the Company, each trustee of the Trust and any person
who controls the Company, the Trust, the Initial Purchasers, such Underwriter,
other selling Holders or controlling persons within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act from and against any loss, expense,
liability or claim (including the reasonable cost of investigation) whatsoever
described in the indemnity contained in Section 5(a), as incurred, but only
insofar as any such loss, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by or on
behalf of such selling Holder expressly for use with reference to such Holder in
the Shelf Registration Statement (or amendment thereto) or in the Prospectus (or
any amendment or supplement thereto) or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information necessary to make such information not misleading; provided,
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however, that no such Holder shall be liable for any claims hereunder in excess
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of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, enclosing a copy of all papers served on such indemnified
party, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have other than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of any such action. If an indemnifying party so elects
within a reasonable time after receipt of such notice, such indemnifying
party,jointly with any other indemnifying party, may assume the defense of such
action with counsel chosen by it and approved by the indemnified party or
parties defendant in such action; provided that if any such indemnified
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party reasonably determines that there may be legal defenses available to such
indemnified party which are different from or in addition to those available to
such indemnifying party or that representation of such indemnifying party and
any indemnified party by the same counsel would present a conflict of interest,
then such indemnifying party or parties shall not be entitled to assume such
defense. If an indemnifying party is not entitled to assume the defense of such
action as a result of the proviso to the preceding sentences, counsel for such
indemnifying party shall be entitled to conduct the defense of such indemnifying
party and counsel for each indemnified party or parties shall be entitled to
conduct the defense of such indemnified party or parties. If an
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indemnifying party assumes the defense of an action in accordance with and as
permitted by the provisions of this paragraph, such indemnifying party shall not
be liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) separate from its own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provision agreement provided for in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company, the Trust, the
Initial Purchasers and the Holders shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company, the Trust, the Initial Purchasers
and the Holders, as incurred; provided that no Person guilty of fraudulent
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misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person that was not guilty of such
fraudulent misrepresentation. As between the Company, the Trust, the Initial
Purchasers and the Holders, such parties shall contribute to such aggregate
losses, expenses, liabilities and claims of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Company and the Trust on the one hand, and the Initial
Purchasers and the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, expense, liabilities or claims, or action
in respect thereof, as well as any other relevant equitable considerations. The
relative fault of the Company and the Trust on the one hand, and the Initial
Purchasers and the Holders, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Trust, on the one hand, or
by or on behalf of the Initial Purchasers or the Holders, on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Trust, the
Initial Purchaser or Holder within the meaning of Section 15 of the Securities
Act of Section 20 of the Exchange Act shall have the same rights to contribution
as such Initial Purchasers and the Holders of the Registrable Securities agree
that it would not be just and equitable if contributions pursuant to this
Section 5 were to be determined by pro rata allocation or by any other method of
allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 5(d), each Person, if any, who
controls an Initial Purchaser or Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director and officer
of the Company, each trustee of the Trust, and each Person, if any, who controls
the Company or the Trust within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Company and the Trust. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without its written
consent.
6. UNDERWRITTEN OFFERING.
(a) The Holders of Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
underwritten
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offering in accordance with the conditions set forth below. In any such
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by, the Holders of a
majority of the Registrable Securities to be included in such offering;
provided, however, that (i) such investment bankers and managers and
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underwriting arrangements must be reasonably satisfactory to the Company and the
Trust and (ii) neither the Company nor the Trust shall be obligated to arrange
for more than one underwritten offering during the Effectiveness Period. No
Holder may participate in any underwritten offering contemplated hereby unless
(i) such Holder agrees to sell such Holder's Registrable Securities in
accordance with any approved underwriting arrangements, (ii) such Holder
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements and (iii) at
least 30% of the Registrable Securities outstanding as of the Closing Time are
included in such underwritten offering. The Holders participating in any
underwritten offering shall be responsible for any expenses customarily borne by
selling securityholders, including underwriting discounts and commissions, fees
and expenses of counsel to the selling securityholders and transfer taxes, if
any, and shall reimburse the Trust and the Company for the fees and
disbursements of their counsel, their independent public accountants and any
printing expenses incurred in connection with such underwritten offering.
Notwithstanding the foregoing, upon receipt of a request from the Managing
Underwriter or a representative of Holders of a majority of the Registrable
Securities outstanding to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 90 days if the Company in good faith has a valid business reason for
such delay.
(b) The Trust and the Company shall enter into such customary agreements
(including underwriting agreements in customary form) which are reasonably
acceptable to the Trust and the Company, and take all other reasonably requested
actions in order to expedite or facilitate the registration or the disposition
of the Registrable Securities (subject to the last sentence of Section 6(a)
above), and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 (or such other customary
provisions and procedures acceptable to the Managing Underwriters, if any, the
Company and the Trust) with respect to all parties to be indemnified pursuant to
Section 5 hereof.
(c) The Trust and the Company shall (i) make available for inspection by
the Holders of Registrable Securities to be registered thereunder, any
Underwriter participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by such Holders
or any such Underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Trust and the Company and its
subsidiaries; (ii) cause the Company's officers, directors and employees and the
Regular Trustees to make reasonably available for inspection all relevant
information reasonably requested by such Holders or any such Underwriter,
attorney, accountant or agent in connection with any such Shelf Registration
Statement, in each case as is customary for similar due diligence examinations;
provided, however, that any information that is designated
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12
in writing by the Trust and the Company, in good faith, as confidential at the
time of delivery of such information shall be kept confidential by such Holders
or any such Underwriter, attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality; and provided further that
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the foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of the Holders and the other parties entitled
thereto by one counsel designated by and on behalf of such Holders and other
parties reasonably acceptable to the Company and the Trust; (iii) make such
representations and warranties to the Holders of Registrable Securities
registered thereunder and the Underwriters, if any, in form, substance and scope
as are customarily made by the Company and the Trust to Underwriters in primary
underwritten offerings and covering matters including, but not limited to, those
set forth in the Purchase Agreement; (iv) obtain opinions of counsel to the
Trust and the Company (who may be the general counsel of the Company) and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the Managing Underwriters, if any) in customary
form addressed to each selling Holder and the Underwriters, if any, covering
such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such Holders
and Underwriters (it being agreed that the matters to be covered by such opinion
or a written statement by such counsel delivered in connection with such
opinions shall include, without limitation, as of the date of the opinion and as
of the effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, the absence from such
Shelf Registration Statement and the Prospectus included therein, as then
amended or supplemented, including the documents incorporated by reference
therein, of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading); (v) obtain "comfort letters" and updates
thereof from the independent public accountants of the Company (and, if
necessary, any other independent public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each such Holder of Registrable Securities
registered thereunder and the Underwriters, if any, in customary form and
covering matters of the type customarily covered in "comfort letters" in
connection with primary underwritten offerings; and (vi) deliver such other
customary documents and certificates as may be reasonably requested by any such
Holders and the Managing Underwriters, if any, including those to evidence
compliance with Section 3(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Trust and the
Company. The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(c) shall be performed at each closing under any underwritten
offering to the extent required thereunder.
(d) Upon the request of the Company, the Holders agree not to effect any
public sale or distribution (including sales pursuant to Rule 144) of
Registrable Securities during the 10-trading day period prior to the date that
the Company has notified the Holders that it intends to commence a Company
Offering through the 180-day period immediately following the closing date of
such Company Offering (or such lesser period as may be required by the
underwriters of such Company Offering); provided, however, that (i) the
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13
Holders shall not be obligated to comply with this Section 6(d) until the first
anniversary of the date of this Agreement and (ii) the Holders shall not be
obligated to comply with this Section 6(d) on more than one occasion in any
12-month period.
(e) Notwithstanding any other provision of this Section 6, if the
Managing Underwriters advise the Holders in writing that marketing factors
require a limitation on the number of shares to be underwritten, the number of
shares included in the underwriting by each Holder shall be reduced on a pro
rata basis (based on the number of shares originally proposed to be so included
by such Holder) by such minimum number of shares as is necessary to comply with
such request. If any Holder who has requested inclusion in such underwriting as
provided above disapproves of the terms of the underwriting, such Holder may
elect to withdraw therefrom by written notice to the Company and the Managing
Underwriters.
7. MISCELLANEOUS.
(a) OTHER REGISTRATION RIGHTS. The Company may grant registration
rights that would permit any Person that is a third party the right to piggyback
on any Shelf Registration Statement; provided that if the Managing Underwriter,
--------
if any, of such offering delivers an opinion to the selling Holders that the
total amount of securities which they and the holders of such piggyback rights
intend to include in any Shelf Registration Statement is so large as to
materially adversely affect the success of such offering (including the price at
which such securities can be sold), then only the amount, number or kind of
securities to be offered for the account of holders of such piggyback rights
will be reduced to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount, number or kind recommended by the
Managing Underwriter prior to any reduction in the amount of Registrable
Securities to be included.
(b) AMENDMENTS AND WAIVERS. The provision of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Initial Purchasers on behalf of the Holders
from time to time.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
1. if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 7(c);
2. if to the Initial Purchasers, initially at the address set forth
in the Purchase Agreement; and
3. if to the Trust or the Company, initially at its address set forth
in the Purchase Agreement.
14
All such notices and communications shall be deemed to have been duly given
when received, if delivered in person or by fax; five days after mailing,
if sent by mail; or the day following transmission, if sent by overnight
courier.
The Initial Purchasers or the Trust and the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and the Holders, including, without the need for an express assignment or any
consent by the Trust or the Company thereto, subsequent Holders of Registrable
Securities. The Trust and the Company hereby agree to extend the benefits of
this Agreement to any Holder of Registrable Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
(e) COUNTERPARTS. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. This agreement shall be governed by the laws of
the State of New York.
(h) SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
15
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Trust and you.
Very truly yours,
XXXXX CAPITAL
By
---------------------
Name:
Title:
XXXXX NATIONAL CORPORATION
By
---------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
XXXXXX, READ & CO. INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By XXXXXX, READ & CO. INC.
By /s/ Xxxxx Xxxx
-------------------------
Name:
Title:
By FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By /s/ [SIGNATURE APPEARS HERE]
-------------------------
Name:
Title:
15
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Trust and you.
Very truly yours,
XXXXX CAPITAL
By /s/ Xxxxx Xxxxxx
-------------------------------
Name:
Title:
XXXXX NATIONAL CORPORATION
By /s/ Xxxxx Xxxxxx
-------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
XXXXXX, READ & CO. INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By XXXXXX, READ & CO. INC.
By
---------------------------------
Name:
Title:
By FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By
---------------------------------
Name:
Title:
