EXHIBIT 4.11
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated November 26, 1996, by and
among FBS Capital I, a Delaware business trust (the "Trust"), First Bank System,
Inc., a Delaware corporation registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended ("FBS") and Xxxxxxx, Xxxxx & Co., Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, Xxxx Xxxxxxxx Incorporated and Xxxxx Xxxxxxx Inc.
(collectively, the "Purchasers") of the 8.09% Capital Securities of the Trust.
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
(a) "Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular purpose.
(b) "Debenture Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement in respect of the Debentures dated
November 26, 1996 among FBS, the Trust and the Purchasers.
(c) "Debentures" means the 8.09% Junior Subordinated Deferrable Interest
Debentures due November 15, 2026 of FBS, to be issued pursuant to the Indenture.
(d) "Effective Time", in the case of (i) an Exchange Offer, means the date
on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "Exchange Debentures" has the meaning set forth in Section 2(a) hereof.
(g) "Exchange Guarantee" has the meaning set forth in Section 2(a) hereof.
(h) "Exchange Offer" has the meaning set forth in Section 2(a) hereof.
(i) "Exchange Registration" has the meaning set forth in Section 3(c)
hereof.
(j) "Exchange Securities" has the meaning set forth in Section 2(a) hereof.
(k) "Guarantee" means the Guarantee of FBS with respect to the Securities,
to the extent set forth in the Guarantee Agreement.
(l) "Guarantee Agreement" means the Guarantee Agreement dated November 26,
1996 between FBS and Property Trustee, for the benefit of the holders of the
Securities.
(m) "Guarantee Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement in respect of the Guarantee dated
November 26, 1996 among FBS, the Trust and the Purchasers.
(n) The term "holder" means each of the Purchasers for so long as it owns
any Registrable Securities, and its respective successors and assigns who
acquire Registrable Securities from time to time, directly or indirectly, from
such person or from any successor or assign of such person, in each case for so
long as such person owns any Registrable Securities.
(o) "Indenture" means the Indenture dated as of November 15, 1996, between
FBS and Wilmington Trust Company, as Debenture Trustee, as supplemented by an
officer's certificate dated November 26, 1996, and as further amended or
supplemented from time to time.
(p) "Issue Date" means November 26, 1996.
(q) "Liquidation Amount" means the stated liquidation preference of the
Securities.
(r) "New Guarantee Agreement" has the meaning set forth in the Guarantee
Exchange and Registration Rights Agreement.
(s) The term "person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(t) "Purchase Agreement" means the Purchase Agreement dated November 19,
1996, among FBS, the Trust and the Purchasers.
(u) "Registrable Securities" means the Securities; provided, however, that
such Securities shall cease to be Registrable Securities when
(i) the Exchange Offer is conducted as contemplated in Section 2(a);
provided that, prior to the consummation of the Exchange Offer, existing
Commission interpretations have not been changed such that the Exchange
Securities received by holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each such
holder (other than a Restricted Holder) without restriction under the
Securities Act in the circumstances contemplated by Section 2(a); and
provided further, that any Exchange Security received by a broker-dealer in
an Exchange Offer exchange for a Registrable Security that was not acquired
by the broker-dealer directly from the Trust will also be a Registrable
Security through and including the earlier of the 90th day after the
Exchange Offer is completed or such time as such broker-dealer no longer
owns such Security; and provided further, however, that any such Securities
that, pursuant to the last two sentences of Section 2(a) hereof, are
included in a
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prospectus for use in connection with resales by broker-dealers shall be
deemed to be Registrable Securities with respect to Sections 5, 6 and 9
until resale of such Exchange Securities has been effected within the 90-
day period referred to in Section 2(a) hereof;
(ii) in the circumstances contemplated by Section 2(b), a registration
statement registering such Securities (and, in the circumstances
contemplated by Section 2(b), other than a registration statement filed in
addition to the Exchange Offer, also registering the underlying Debentures
and the related Guarantee) under the Securities Act has been declared or
becomes effective and such Securities have been sold or otherwise
transferred by the holder thereof pursuant to such effective registration
statement;
(iii) such Securities are sold pursuant to Rule 144 (or any successor
provision) promulgated under the Securities Act under circumstances in
which any legend borne by such Securities relating to restrictions on
transferability thereof, under the Securities Act, is removed by the Trust
or pursuant to the Trust Agreement or such Securities are eligible to be
sold pursuant to paragraph (k) of Rule 144; or
(iv) such Securities shall cease to be outstanding.
(v) "Registration Default" has the meaning set forth in Section 2(c)
hereof.
(w) "Registration Expenses" has the meaning set forth in Section 4 hereof.
(x) "Restricted Holder" means (i) a holder that is an affiliate of the
Trust or of FBS within the meaning of Rule 405 under the Securities Act, (ii) a
holder who acquires Exchange Securities outside the ordinary course of such
holder's business, (iii) a holder who has arrangements or understandings with
any person to participate in the Exchange Offer for the purpose of distributing
Exchange Securities or (iv) a broker-dealer who receives Securities for its own
account but did not acquire the Securities as a result of market-making
activities or other trading activities.
(y) "Resale Period" has the meaning set forth in Section 2(a) hereof.
(z) "Securities" means, collectively, the $300,000,000 8.09% Capital
Securities, Liquidation Amount $1,000 per Capital Security, of the Trust to be
issued and sold to the Purchasers, and any securities issued in exchange
therefor or in lieu thereof pursuant to the Trust Agreement.
(aa) "Securities Act" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
(bb) "Shelf Registration" has the meaning set forth in Section 2(b) hereof.
(cc) "Special Distributions" has the meaning set forth in Section 2(c)
hereof.
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(dd) "Special Interest" has the meaning set forth in Section 2(c) hereof.
(ee) "Trust Agreement" means the Amended and Restated Trust Agreement dated
as of November 26, 1996 among FBS, as Depositor, Wilmington Trust Company, as
Property Trustee and Delaware Trustee and Administrative Agents named therein.
(ff) "Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Exchange
and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, FBS and the Trust agree,
jointly and severally, to use their reasonable best efforts to file under the
Securities Act, as soon as practicable, but no later than 150 days after the
Issue Date, a registration statement relating to an offer to exchange (the
"Exchange Offer") any and all of the Securities for a like aggregate Liquidation
Amount of capital securities of the Trust which are substantially identical to
the Securities (and which are entitled to the benefits of the Trust Agreement
which will be qualified under the Trust Indenture Act) except that they have
been registered pursuant to an effective registration statement under the
Securities Act and such new capital securities will not contain provisions for
Special Distributions or provisions restricting transfer in the absence of
registration under the Securities Act (such new capital securities hereinafter
called "Exchange Securities") for any or all of the Registrable Securities. Such
registration statement shall also relate to, and the consummation of the
Exchange Offer shall be conditioned upon the consummation of, an offer to
exchange the Debentures for substantially identical debentures of FBS pursuant
to the Debenture Exchange and Registration Rights Agreement (the "Exchange
Debentures") and to an offer to exchange the Guarantee for a substantially
identical guarantee of FBS pursuant to the Guarantee Exchange and Registration
Rights Agreement (the "Exchange Guarantee"). FBS and the Trust agree, jointly
and severally, to use their reasonable best efforts to cause such registration
statement to become effective under the Securities Act as soon as practicable
thereafter. The Exchange Offer will be registered under the Act on the
appropriate form and will comply in all material respects with all applicable
tender offer rules and regulations under the Exchange Act. FBS and the Trust
further agree, jointly and severally, to commence the Exchange Offer promptly
after such registration statement has become effective, hold the Exchange Offer
open for at least 30 days and the Trust agrees to issue Exchange Securities for
all Registrable Securities that have been tendered and not withdrawn on or prior
to the expiration of the Exchange Offer. The Exchange Offer will be deemed to
have been completed only if the Exchange Securities received by holders other
than Restricted Holders
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in the Exchange Offer for Registrable Securities are, upon receipt, transferable
by each such holder without restriction under the Securities Act and the
Exchange Act, it being understood that broker-dealers receiving Securities will
be subject to certain prospectus delivery requirements with respect to resale of
the Securities. The Exchange Offer shall be deemed to have been completed upon
the earlier to occur of (i) the Trust having exchanged the Exchange Securities
for all outstanding Registrable Securities pursuant to the Exchange Offer and
(ii) the Trust having exchanged, pursuant to the Exchange Offer, Exchange
Securities for all Registrable Securities that have been tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be on a date
that is at least 30 days following the commencement of the Exchange Offer. FBS
and the Trust agree, jointly and severally, (x) to include in the registration
statement a prospectus for use in connection with any resales of Exchange
Securities by a broker-dealer, other than resales of Exchange Securities
received by a broker-dealer pursuant to the Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Trust,
and (y) to the extent any broker-dealer participates in the Exchange Offer and
notifies FBS or causes FBS to be notified in writing that it is a participating
broker-dealer, to use their reasonable efforts to keep such registration
statement effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 90th day after the Exchange Offer has been completed or
such shorter period if all Exchange Securities received by such broker-dealer in
exchange for Registrable Securities acquired for their own account as a result
of market-making or other trading activities have been disposed of by such
broker-dealer; and no broker-dealers shall be authorized by FBS to, and shall
not, deliver such Prospectus after such period in connection with resales
contemplated by this Section 2(a) or otherwise; it being understood that,
notwithstanding anything in this Exchange and Registration Rights Agreement to
the contrary, FBS shall not be required to comply with any provision of this
Section 2(a) or any other provision of this Exchange and Registration Rights
Agreement relating to the distribution of Exchange Securities by broker-dealers,
to the extent that FBS reasonably concludes that compliance with such provision
is no longer required by applicable law or interpretation of the Staff of the
SEC. With respect to such registration statement, each broker-dealer that holds
Exchange Securities received in an Exchange Offer in exchange for Registrable
Securities not acquired by it directly from the Trust shall have the benefit of
the rights of indemnification and contribution set forth in Section 6 hereof.
(b) If (i) on or prior to the consummation of the Exchange Offer existing
Commission interpretations are changed such that the Exchange Securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt, transferable by
each such holder without restriction under the Securities Act, (ii) the Exchange
Offer has not been consummated within 210 days following the Issue Date or (iii)
the Purchasers so request (but only with respect to the Securities) within 60
days after the consummation of the Exchange Offer with respect to any Securities
held by them which are not freely transferable following consummation of the
Exchange Offer, in lieu of (or, in the case of clause (iii), in addition to)
conducting the Exchange Offer contemplated by Section 2(a) FBS and the Trust
shall file under the Securities Act, as soon as practicable, a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable Securities
(or, in the case of clause (iii), of the Securities held by the Purchasers
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for resale by the Purchasers), pursuant to Rule 415 under the Securities Act
and/or any similar rule that may be adopted by the Commission (the "Shelf
Registration"). Unless the Shelf Registration has been filed in addition to
conducting the Exchange Offer contemplated by Section 2(a), the Shelf
Registration shall also provide for the registration of the Debentures pursuant
to the Debenture Exchange and Registration Rights Agreement and for the
registration of the Guarantee pursuant to the Guarantee Exchange and
Registration Rights Agreement. FBS and the Trust agree, jointly and severally,
to use their reasonable best efforts to cause the Shelf Registration to become
or be declared effective and to keep such Shelf Registration continuously
effective for a period ending on the earlier of (A) the third anniversary of the
Issue Date (or, in the case of clause (iii), the first anniversary) or (B) the
later of (i) such time as there are no longer any Registrable Securities
outstanding or (ii) as required under the Debenture Exchange and Registration
Rights Agreement. FBS and the Trust further agree, jointly and severally, to
supplement or make amendments to the Shelf Registration, as and when required by
the rules, regulations or instructions applicable to the registration form used
by FBS and the Trust for such Shelf Registration or by the Securities Act or
rules and regulations thereunder for shelf registration, and FBS and the Trust
agree, jointly and severally, to furnish to the holders of the Registrable
Securities copies of any such supplement or amendment prior to its being used
and/or filed with the Commission.
(c) In the event that (i) FBS and the Trust have not filed the registration
statement relating to the Exchange Offer (or, if applicable, the Shelf
Registration) on or before the 150th day after the Issue Date, or (ii) such
registration statement (or, if applicable, the Shelf Registration) has not
become effective or been declared effective by the Commission on or before the
180th day after the Issue Date, or (iii) any of the Exchange Offer, the exchange
offer contemplated by the Guarantee Exchange and Registration Rights Agreement
and the exchange offer contemplated by the Debenture Exchange and Registration
Rights Agreement has not been completed within 210 days after the Issue Date (if
the Exchange Offer is then required to be made) or (iv) any registration
statement required by Section 2(a) or 2(b) is filed and declared effective but
shall thereafter cease to be effective (except as specifically permitted herein)
without being succeeded immediately by an additional registration statement
filed and declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default"), then interest will accrue (in addition to the
stated interest rate on the Debentures) at the rate of 0.25% per annum on the
principal amount of the Debentures, and the distributions will accrue (in
addition to the stated distribution rate on the Securities) at the rate of 0.25%
per annum on the Liquidation Amount of the Securities, for the period from the
occurrence of the Registration Default until such time as no Registration
Default is in effect. Such additional interest (the "Special Interest") and such
additional distributions (the "Special Distributions") will be payable in cash
semi-annually in arrears on each May 15 and November 15 in accordance with, and
subject to the deferral provisions of, the Indenture and the Trust Agreement,
respectively. Special Interest, if any, and Special Distributions, if any, will
be computed on the basis of a 365 or 366 day year, as the case may be, and the
number of days actually elapsed.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post effective amendment to a
registration statement shall be deemed
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to include any document incorporated therein by reference as of a time after
such Effective Time.
3. Registration Procedures.
If FBS and the Trust file a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, FBS shall qualify the Indenture, the New
Guarantee Agreement and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a
new trustee under any of the Indenture, the New Guarantee Agreement or the Trust
Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of FBS and the
Trust with respect to the registration of the Exchange Securities, the Exchange
Guarantee and the Exchange Debentures, as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, FBS and the Trust shall, as soon as
reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Issue Date, a
registration statement with respect to the Exchange Registration on any
form which may be utilized by FBS and the Trust and which shall permit
the Exchange Offer and resales of Exchange Securities by broker-dealers
during the Resale Period to be effected as contemplated by Section 2(a)
hereof, and use its reasonable best efforts to cause such registration
statement to become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement, and
promptly provide each broker-dealer holding Exchange Securities with
such number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material respects with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder, as
such broker-dealer reasonably may request prior to the expiration of
the Resale Period, for use in connection with resales of Exchange
Securities;
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(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such
registration statement or the prospectus included therein or any
prospectus amendment or supplement or post effective amendment has been
filed, and, with respect to such registration statement or any post
effective amendment, when the same has become effective, (B) of the
receipt of any comments by the Commission and by the Blue Sky or
securities commissioner or regulator of any state with respect thereto
or any request by the Commission for amendments or supplements to such
registration statement or prospectus or for additional information, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
joint and several representations and warranties of FBS and the Trust
contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by either FBS or the Trust of any
notification with respect to the suspension of the qualification of the
Exchange Securities and the Exchange Guarantee for sale in any United
States jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (F) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act, that
such registration statement, prospectus, prospectus amendment or
supplement or post effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder or contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that FBS and the Trust would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each
such holder a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of such
Exchange Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission promulgated thereunder and shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(v) use their best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
any post effective amendment thereto at the earliest practicable date;
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(vi) use their reasonable best efforts to (A) register or
qualify the Exchange Securities and the Exchange Guarantee under the
securities laws or blue sky laws of such jurisdiction as are
contemplated by Section 2(a) no later than the commencement of the
Exchange Offer, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions until the expiration
of the Resale Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer holding
Exchange Securities to consummate the disposition thereof in such
jurisdictions; provided, however, that neither FBS nor the Trust shall
be required for any such purpose to (1) qualify to do business in any
jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(g)(vi), (2) consent to general
service of process in any such jurisdiction or (3) in the case of FBS,
make any changes to its charter or by-laws or any agreement between it
and its stockholders or in the case of the Trust, make any changes to
the Trust Agreement;
(vii) use their reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority,
whether federal, state or local, which may be required to effect the
Exchange Registration, the Exchange Offer and the offering and sale of
Exchange Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities
as soon as practicable but no later than eighteen months after the
Effective Time, an earnings statement of FBS and its subsidiaries
complying with Section 11 (a) of the Securities Act (including, at the
option of FBS, Rule 158 thereunder).
(d) In connection with the joint and several obligations of FBS and the
Trust with respect to the Shelf Registration, if applicable, FBS and the Trust
shall use their reasonable best efforts to cause the Shelf Registration to
become effective to permit the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof described in the Shelf Registration. In connection therewith, FBS and
the Trust shall as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable,
a registration statement with respect to the Shelf Registration on any
form which may be utilized by FBS and the Trust and which shall permit
the disposition of the Registrable Securities in accordance with the
intended method or methods thereof, as specified in writing to FBS and
the Trust by the holders of the Registrable Securities and use their
reasonable
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best efforts to cause such registration statement to become effective
as soon as practicable thereafter;
(ii) as soon as practicable, prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the period
specified in Section 2(b) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such registration statement and furnish to
the holders of the Registrable Securities copies of any such supplement
or amendment simultaneously with or prior to its being used or filed
with the Commission;
(iii) comply with the provisions of the Securities Act applicable
to FBS or the Trust in connection with the disposition of all of the
Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the holders
thereof, set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel
for all the holders of such Registrable Securities, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act),
if any, thereof, (C) the sales or placement agent, if any, therefor and
(D) one counsel for such underwriters or agents, if any, reasonable
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the
Commission, and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at FBS's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(iv) who shall certify to FBS and the Trust
that they have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other information
and books and records of FBS and the Trust, and cause the officers,
employees, counsel and independent certified public accountants of FBS
and the Trust to respond to such inquiries, as shall be reasonably
necessary, in the judgment of the respective counsel referred to in
such Section, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided, however, that each such
party shall be required to maintain in confidence and not to disclose
to any other person any information or records reasonably designated by
FBS as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion
in such registration statement or otherwise, except by disclosure by
such party in
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breach of this Agreement), or (B) such person shall be required
so to disclose such information pursuant to the subpoena or order
of any court or other governmental agency or body having
jurisdiction over the matter (subject to, and only to the extent
required by, the requirements of such order, and only after such
person shall have given FBS prompt prior written notice of such
requirement);
(vi) promptly notify the selling holders of
Registrable Securities, the sales or placement agent, if any,
therefor and the managing underwriter or underwriters, if any,
thereof and confirm such advice in writing, (A) when such
registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment
has been filed, and, with respect to such registration statement
or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the Blue
Sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments
or supplements to such registration statement or prospectus or
for additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the joint and
several representations and warranties of FBS and the Trust
contemplated by Section 3(d)(xv) or Section 5 cease to be true
and correct in all material respects, (E) of the receipt by
either FBS or the Trust of any notification with respect to the
suspension of the qualification of the Registrable Securities and
the Guarantee for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any
time when a prospectus is required to be delivered under the
Securities Act, that such registration statement, prospectus,
prospectus amendment or supplement or post-effective amendment,
or any document incorporated by reference in any of the
foregoing, does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
promulgated thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(vii) use their best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder or
counsel for the holders of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies
should be included
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therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with
respect to the Liquidation Amount of Registrable Securities being
sold by any holder or agent or to any underwriters, the name and
description of such holder, agent or underwriter, the offering
price of such Registrable Securities and any discount, commission
or other compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with respect
to any other terms of the offering of the Registrable Securities,
to be sold by such holder or agent or to such underwriters; and
make all required filings of such prospectus supplement or post-
effective amendment promptly after notification of the matters to
be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable
Securities, each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred
to in Section 3(d)(iv) an executed copy of such registration
statement, each such amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by
reference therein) and such number of copies of such registration
statement (excluding exhibits thereto and documents incorporated
by reference therein unless specifically so requested by such
holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including
each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder, and such other documents, as
such holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder,
offered or sold by such agent or underwritten by such underwriter
and to permit such holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and each
of FBS and the Trust hereby consents to the use of such
prospectus (including such preliminary and summary prospectus)
and any amendment or supplement thereto by each such holder and
by any such agent and underwriter, in each case in the form most
recently provided to such party by FBS and the Trust, in
connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such preliminary
and summary prospectus) or any supplement or amendment thereto;
(x) use their reasonable best efforts to (A)
register or qualify the Registrable Securities to be included in
such registration statement and the Guarantee under such
securities laws or blue sky laws of such jurisdictions as any
holder of such Registrable Securities and each placement or sales
agent, if any, therefor and underwriter, if any, thereof shall
reasonably request, (B) keep such registrations or qualifications
in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings
12
therein in such jurisdictions during the period the Shelf
Registration is required to remain effective under Section 2(b)
above and for so long as may be necessary to enable any such
holder, agent or underwriter to complete its distribution of
Securities pursuant to such registration statement and (C) take
any and all other actions as may be reasonably necessary or
advisable to enable each such holder, agent, if any, and
underwriter, if any, to consummate the disposition in such
jurisdictions of Registrable Securities; provided, however, that
neither FBS nor the Trust shall be required for any such purpose
to (1) qualify to do business in any jurisdiction wherein it
would not otherwise be required to qualify but for the
requirements of this Section 3(d)(x), (2) consent to general
service of process in any such jurisdiction, (3) in the case of
FBS, make any changes to its charter or by-laws or any agreement
between it and its shareholders or in the case of the Trust, make
any changes to the Trust Agreement;
(xi) use their reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable
Securities and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall be
printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request
at least two business days prior to any sale of the Registrable
Securities;
(xiii) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xiv) enter into not more than one underwriting
agreement, engagement letter, agency agreement, "best efforts"
underwriting agreement or similar agreement, as appropriate,
including (without limitation) provisions relating to
indemnification and contribution substantially the same as those
set forth in Section 6 hereof, and take such other actions in
connection therewith as any holders of Registrable Securities
aggregating at least 25% in aggregate Liquidation Amount of the
Registrable Securities at the time outstanding shall reasonably
request in order to expedite or facilitate the disposition of
such Registrable Securities; provided, that FBS and the Trust
shall not be required to (i) enter into any such agreement more
than once with respect to all of the Registrable Securities and
may delay entering into such agreement until the consummation of
any underwritten
13
public offering which FBS and the Trust shall have then
undertaken or (ii) enter into any engagement letter, agency
agreement, "best effort" underwriting agreement or similar
agreement whatsoever with respect to the Registrable Securities,
and provided, further that FBS and the Trust shall not be
obligated to enter into any such agreement with a broker-dealer
which results in the need for a "qualified independent
underwriter" (within the meaning of the Rules of Fair Practice
and the By-Laws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from
time to time (the "Rules and By-Laws of NASD"));
(xv) whether or not an agreement of the type referred
to in Section (3)(d)(xiv) hereof is entered into and whether or
not any portion of the offering contemplated by such registration
statement is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the holders of such Registrable
Securities and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof substantially the same as those
set forth in Section V of the Purchase Agreement and such other
representations and warranties as are customarily made with
respect to the offering of debt securities pursuant to any
appropriate agreement or to a registration statement on the
applicable form under the Securities Act; (B) obtain an opinion
or opinions of counsel to FBS and the Trust substantially the
same as the opinions provided for in Section IV of the Purchase
Agreement with such additions, substitutions or deletions of such
matters as are customarily covered in opinions for an
underwritten offering, addressed to such holder or holders and
the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that
the matters to be covered by such opinion shall also include,
without limitation, the absence of governmental approvals
required to be obtained in connection with the Shelf
Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or
any agreement of the type referred to in Section (3)(c)(xiv)
hereof, except such approvals as may be required under state
securities or blue sky laws; and the compliance as to form of
such registration statement and any documents incorporated by
reference therein and of the Indenture, the Guarantee Agreement
and the Trust Agreement with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission promulgated thereunder, respectively); and, such
opinion shall also state that such counsel has no reason to
believe that, as of the date of the opinion and of the
registration statement or most recent post-effective amendment
thereto, as the case may be, such registration statement and the
prospectus included therein, as then amended or supplemented, and
the documents incorporated by reference therein (in each case
other than the financial statements and other financial
information
14
contained therein) contains or contained an untrue statement of a
material fact or omits or omitted to state therein a material
fact necessary to make the statements therein not misleading (in
the case of such documents, in the light of the circumstances
existing at the time that such documents were filed with the
Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public
accountants of FBS and the Trust addressed to the selling holders
of Registrable Securities, the placement or sales agent, if any,
therefor and the underwriters, if any, thereof, dated (i) the
effective date of such registration statement and (ii) the
effective date of any prospectus supplement to the prospectus
included in such registration statement or post-effective
amendment to such registration statement substantially in the
form of Exhibit F to the Purchase Agreement; (D) deliver such
other documents and certificates, including officers'
certificates, as may be reasonably requested by any holders of at
least 25 % in aggregate Liquidation Amount of the Registrable
Securities at the time outstanding or the placement or sales
agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained
in Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting
agreement or other agreement entered into by FBS and the Trust;
and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided
in Section 6 hereof;
(xvi) notify in writing each holder of Registrable
Securities of any proposal by FBS and the Trust to amend or waive
any provision of this Exchange and Registration Rights Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain
the text of the amendment or waiver proposed or effected, as the
case may be;
(xvii) in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules and By-Laws of NASD) thereof,
whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules and By-Laws,
including, without limitation, by (A) if such Rules or By-Laws,
including Schedule E thereto (or any successor thereto), shall so
require, engaging a "qualified independent underwriter" (as
defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement
relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a
15
placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such other
customary extent as may be required by such underwriter), and (C)
providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the
requirements of the Rules and By-Laws of NASD; and
(xviii) comply with all applicable rules and
regulations of the Commission, and make generally available to
its holders of the Securities as soon as practicable but in any
event not later than eighteen months after the effective date of
such registration statement, an earnings statement of FBS and its
subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of FBS, Rule 158 thereunder).
(e) In the event that FBS and the Trust would be required, pursuant to
Section 3(d)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, FBS and the Trust shall without delay prepare and
furnish to each such holder, to each placement or sales agent, if any, and to
each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder and shall
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. Each holder of
Registrable Securities agrees that upon receipt of any notice from FBS and the
Trust pursuant to Section 3(d)(vi)(F) hereof, such holder shall forthwith
discontinue the disposition of Registrable Securities, pursuant to the
registration statement applicable to such Registrable Securities until such
holder shall have received copies of such amended or supplemented prospectus,
and if so directed by FBS and the Trust, such holder shall deliver to FBS (at
FBS's expense) all copies, other than permanent file copies, then in such
holder's possession of the prospectus covering such Registrable Securities at
the time of receipt of such notice.
(f) FBS and the Trust may require each holder of Registrable Securities as
to which any registration is being effected to furnish in writing to FBS and the
Trust such information regarding such holder and such holder's intended method
of distribution of such Registrable Securities as FBS and the Trust may from
time to time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act. Each such
holder agrees to notify FBS and the Trust as promptly as practicable of any
inaccuracy or change in information previously furnished by such holder to FBS
and the Trust or of the occurrence of any event in either case as a result of
which any prospectus relating to such registration contains or would contain an
untrue statement of a material fact regarding such holder or such holder's
intended method of distribution of such Registrable Securities or omits to state
any material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities required to be stated therein or
16
necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to FBS and the Trust any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such holder or the distribution of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. Each such holder shall comply with the
provisions of the Securities Act applicable to such holder with respect to the
disposition by such holder of Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by
such holder set forth in such registration statement.
(g) Until the expiration three years after the Issue Date, FBS will not,
and will not permit any of its "affiliates" (as defined in Rule 144 under the
Act) to, resell any of the Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them except pursuant to an
effective registration statement under the Act or any exemption therefrom;
provided, however, that, for purposes of this paragraph, "affiliates" shall not
include the Purchasers or any of their affiliates other than FBS and its
subsidiaries, officers, managers and directors.
(h) If FBS and the Trust file with the Commission a registration statement
in respect of the Exchange Offer pursuant to Section 2(a), then FBS and the
Trust shall also file with the Commission a registration statement under Section
12 of the Exchange Act and the rules and regulations promulgated thereunder
related to the Exchange Securities (and the Securities and the Registrable
Securities, if any). FBS and the Trust shall use their reasonable best efforts
to cause such registration statement to become effective prior to the 120th day
of the fiscal year of the Trust next succeeding the fiscal year in which the
Exchange Offer has been consummated.
(i) FBS and the Trust may require each holder of Registrable Securities as
to which a registration statement is being effected pursuant to Section 2(a), as
a condition to such holder's eligibility to exchange the Registrable Securities
for the Exchange Securities, that such holder furnish to FBS and the Trust (or
an agent thereof) in writing information as to the number of "beneficial owners"
(within the meaning of Rule 13d-3 under the Exchange Act) on behalf of whom such
holder holds the Registrable Securities that such holder desires to exchange for
the Exchange Securities.
4. Registration Expenses.
If FBS and the Trust file a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
FBS agrees to bear and to pay or cause to be paid promptly upon request
being made therefor all expenses incident to the performance by FBS and the
Trust or compliance with this Exchange and Registration Rights Agreement,
including, without limitation, (a) all Commission and any NASD registration and
filing fees and expenses, (b) all fees and expenses in connection with the
qualification of the Securities and the Guarantee for offering and sale under
the state securities and blue sky laws referred to in Section 3(d)(x) hereof,
17
including reasonable fees and disbursements of counsel in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, and the
certificates representing the Securities and all documents relating hereto, (d)
messenger and delivery expenses, (e) fees and expenses of the Debenture Trustee
under the Indenture, the Issuer Trustees under the Trust Agreement and the
Guarantee Trustee under the Guarantee Agreement and of any escrow agent or
custodian, (f) internal expenses (including, without limitation, all salaries
and expenses of FBS's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of FBS and the Trust (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses of any "qualified
independent underwriter" engaged pursuant to Section 3(d)(xvii) hereof, (i)
fees, disbursements and expenses of one counsel for the holders of Registrable
Securities retained in connection with a Shelf Registration, as selected by the
holders of at least a majority in aggregate Liquidation Amount of the
Registrable Securities being registered, and fees, expenses and disbursements of
any other persons, including special experts, retained by FBS or the Trust in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, FBS shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
written request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency or brokerage fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above,
transfer taxes on resale of any of the Securities by such holders and any
advertising or solicitation expenses other than expenses specifically referred
to above incurred by or on behalf of such holders in connection with any offers
they may make.
5. Representations and Warranties.
FBS and the Trust, jointly and severally, represent and warrant to, and
agree with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable Securities, the
Guarantee and the Debentures and each prospectus (including any preliminary or
summary prospectus) contained therein or furnished pursuant to Section 3(d)(ix)
hereof and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act, the
rules and regulations of the Commission promulgated thereunder and any such
registration statement and any amendment thereto will not contain an untrue
statement of a material fact or omit to
18
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and any such prospectus or any amendment or
supplement thereto will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing; and at all times subsequent to the Effective Time of any such
registration statement when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(c)(iii)(F) or Section
3(d)(vi)(F) hereof until (ii) such time as FBS and the Trust furnish an amended
or supplemented prospectus pursuant to Section 3(c)(iv) or Section 3(e) hereof,
as the case may be, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant to
Section 3(c) or Section 3(d)(ix) hereof, as then amended or supplemented, will
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to FBS and the Trust by
a holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to FBS and the Trust by a holder of
Registrable Securities expressly for use therein.
(c) The representations and warranties of the Trust and FBS contained in
Section V of the Purchase Agreement are true and correct with the same force and
effect as though expressly made at and as of the date hereof.
6. Indemnification.
(a) Upon the registration of the Registrable Securities pursuant to Section
2 hereof, and in consideration of the agreements of the Purchasers contained
herein, and as an inducement to the Purchasers to purchase the Securities, the
Trust and FBS, jointly and severally, agree to indemnify and hold harmless each
of the holders of Registrable Securities to be included in such registration,
and each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable Securities and each
person, if any, who controls such holder, or such placement or sales agent, if
any, or such
19
underwriter, if any, within the meaning of Section 15 of the Act or Section
20 of the Exchange Act (each an "Indemnified Person") as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in any registration
statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary
prospectus contained therein as furnished by the Trust or FBS to any
such holder, agent or underwriter (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement or such preliminary, final or summary
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 light of the circumstances under which
they were made, not misleading, unless such untrue statement or
omission was made in reliance upon and in conformity with written
information relating to such Indemnified Person furnished to the Trust
and FBS by, or on behalf of, such Indemnified Person expressly for use
in such registration statement or such preliminary, final or summary
prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission (except as made in reliance
upon and in conformity with information relating to such Indemnified
Person furnished by, or on behalf of, such Indemnified Person as
aforesaid), if such settlement is effected with the written consent of
the Trust and FBS; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in
conformity with information relating to such Indemnified Person
furnished by, or on behalf of, such Indemnified Person as aforesaid)
to the extent that any such expense is not paid under (i) or (ii)
above.
provided, however, that indemnification with respect to any prospectus
shall not inure to the benefit of any holder of Registrable Securities or
Exchange Securities from whom the Person
20
asserting any loss, claim, liability, damage or expense purchased such
Securities, if a copy of the Prospectus (as then amended or supplemented and
furnished by FBS to such holder) was not sent or given by or on behalf of such
holder to such person if such is required by law at or prior to the sale of such
Registrable Securities or Exchange Securities, as the case may be, and if the
prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, liability, damage or expense.
(b) FBS may require, as a condition to including any Registrable Securities
in any registration statement filed pursuant to Section 2 hereof and to entering
into any placement or underwriting agreement with respect thereto, that FBS
shall have received an undertaking reasonably satisfactory to them from the
holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and FBS and
each person, if any, who controls the Trust or FBS within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any registration
statement under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or FBS to any such holder, agent or
underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
FBS by or on behalf of such holder, or such placement or sales agent, if any, or
such underwriter, if any, expressly for use in such registration statement or
such preliminary, final or summary prospectus (or any amendment or supplement
thereto).
(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 but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local 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;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
21
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in this Section 6 is for any reason
held to be unavailable to such holders, such placement or sales agents, if any,
or such underwriters, if any, in accordance with its terms, the Trust, FBS and
such holders, such placement and sales agents, if any, and such underwriters, if
any, shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Trust, FBS and such holders, such placement and sales agents, if any, and such
underwriters, if any, in such proportions as is appropriate to reflect the
relative benefits received by the Trust and FBS on the one hand and such
holders, such placement and sales agents, if any, and such underwriters, if any,
on the other. The relative benefits received by the Trust and FBS on the one
hand and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other shall be deemed to be in such proportion
represented by the percentage that the total commissions and underwriting
discounts received by such holders, such placement and sales agents, if any, and
such underwriters, if any, to the date of such liability bears to the total
sales price (before deducting expenses) received by the Trust and such holders,
such placement and sales agents, if any, and such underwriters, if any, from the
sale of such Securities made to the date of such liability, and the Trust and
FBS are jointly and severally responsible for the balance. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if such holders, such placement and sales agents, if any, and
such underwriters, if any, failed to give the notice required under this
subsection (c), then the Trust, FBS and such holders, such placement and sales
agents, if any, and such underwriters, if any, shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Trust and FBS on the one hand and such holders, such
placement and sales agents, if any, and such underwriters, if any, on the other
in connection with the statements or omissions which resulted in such
liabilities, claims, damages and expenses, as well as any other relevant
equitable considerations. The relative fault 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 Trust and FBS on the one hand or is
supplied by, or on behalf of, such holders, such placement or sales agents, if
any, and such underwriters, if any, on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust, FBS and such holders, such placement or
sales agents, if any, and such underwriters, if any, agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
pro rata (even if such holders, such placement or sales agents, if any, and such
underwriters, if any, were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding the provisions of
this paragraph, such holders, such placement or sales agents, if any, and such
underwriters, if any, shall not be required to contribute any amount in excess
of the amount by which the total price at which the Securities referred to in
the second sentence of this paragraph that were offered and sold to the public
through such holders, such placement or sales agents, if any, and such
underwriters, if any, exceeds the amount of any damages that such holders, such
placement or sales agents, if any, and such underwriters, if any, have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section
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11(f) of the Act) shall be entitled under this paragraph to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls any such holders, such
placement or sales agents, if any, and such underwriters, if any, within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such holders, such placement or sales agents,
if any, and such underwriters, if any, and each person, if any, who controls the
Trust or FBS within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Trust or FBS.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by the
holders of at least a majority in aggregate Liquidation Amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Trust and FBS.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) Consolidated Earnings Statements. In the event of an underwritten
offering, FBS agrees to make generally available to holders of Securities as
soon as practicable, but in any event not later than eighteen months after the
effective date of the applicable registration statement (as defined in Rule
158(c) under the Securities Act), a consolidated earnings statement of FBS
(which need not be audited) complying with Section 11 (a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
FBS, Rule 158 under the Securities Act)
8. Rule 144.
FBS covenants to the holders of Registrable Securities that to the extent
it shall be required to do so under the Exchange Act, FBS shall timely file the
reports required to be filed by it under the Exchange Act or the Securities Act
(including, but not limited to, the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to make Rule 144 available to such holder for the sale of
Registrable Securities without registration under the Securities Act within the
limitations of the exemption provided by Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the Commission. Upon the
23
request of any holder of Registrable Securities in connection with that holder's
sale pursuant to Rule 144, FBS shall deliver to such holder a written statement
as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Trust and FBS represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this Exchange
and Registration Rights Agreement and that the Debenture Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: First Bank System, Inc.,
First Bank Place, 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 and if
to a holder, to the address of such holder set forth in the security register or
other records of the Trust, or to such other address as any party may have
furnished to the others in writing in accordance herewith, except that notices
of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the respective successors and assigns of the
parties hereto. In the event that any transferee of any holder of Registrable
Securities shall become a holder of Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Exchange and
Registration Rights Agreement. If FBS shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
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(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer. In addition, the
respective indemnities, representations and warranties set forth herein shall
survive the termination hereof.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by FBS, the Trust and
the holders of at least 66-2/3 percent in aggregate principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of FBS at
the address thereof set forth in Section 9(c) above.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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This Agreement is hereby executed as of the day and year first above written.
FIRST BANK SYSTEM, INC.
/s/ Xxxxxxx X. Xxxxxx
By:_________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FBS CAPITAL I
/s/ Xxx X. Mitau
By:_________________________________
Administrative Agent
XXXXXXX, SACHS & CO.
As Representative of the Purchasers Named
in Schedule I to the Purchase Agreement
/s/ Xxxxxxx, Xxxxx & Co.
By:_________________________________
(Xxxxxxx, Sachs & Co.)
Acting severally, and not jointly and
severally, on behalf of themselves and
each of the Purchasers named in Schedule
I to the Purchase Agreement
