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EXHIBIT 4(I)
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
AMONG
THE COLONIAL BANCGROUP, INC.,
COLONIAL CAPITAL I,
AND
BEAR, XXXXXXX & CO. INC.,
XXXXX, XXXXXXXX & XXXXX, INC.,
as the Initial Purchasers
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Dated as of January 29, 1997
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TABLE OF CONTENTS
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
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1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Registration Under the Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(a) Indemnification by the Company and the Issuer Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(b) Indemnification by the Holders and any Agents and Underwriters . . . . . . . . . . . . . . . . . . . . . 23
(c) Notices of Claims, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(d) Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
7. Underwritten Offerings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(a) Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(b) Participation by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(a) No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(b) Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(c) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(d) Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(e) Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(f) LAW GOVERNING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(g) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(h) Entire Agreement; Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(i) Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(j) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of January 29,
1997, by and among The Colonial BancGroup, Inc., a Delaware corporation (the
"Company"), Colonial Capital I, a Delaware statutory business trust (the
"Issuer Trust"), Bear, Xxxxxxx & Co. Inc. and Xxxxx, Xxxxxxxx & Xxxxx, Inc., as
the initial purchasers (the "Initial Purchasers") of the 8.92% Capital
Securities, Series A of the Issuer Trust, which are guaranteed by the Company.
1. Certain Definitions.
For all purposes of this Agreement, the following terms shall have the
following respective meanings:
"Agreement" shall mean this Exchange and Registration Rights
Agreement, as modified, amended or supplemented from time to time.
"Applicable Guarantee Agreement" shall mean the Guarantee
Agreement, when used with respect to the Securities or the Issuer
Trust, or the Exchange Guarantee Agreement, when used with respect to
the Exchange Securities or the Exchange Issuer Trust.
"Applicable Indenture" shall mean the Indenture, when used
with respect to the Junior Subordinated Debentures, the Securities or
the Issuer Trust, or the Exchange Indenture, when used with respect to
the Exchange Junior Subordinated Debentures, the Exchange Securities
or the Exchange Issuer Trust.
"Applicable Trust Agreement" shall mean the Trust Agreement,
when used with respect to the Securities or the Issuer Trust, or the
Exchange Trust Agreement, when used with respect to the Exchange
Securities or the Exchange Issuer Trust.
The term "broker-dealer" shall mean any broker or dealer
registered with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute
for the particular purpose.
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"Common Securities" shall mean the common securities of the
Issuer Trust issued pursuant to the Trust Agreement.
"Company" shall have the meaning assigned thereto in the
preamble.
"Distributions", with respect to the Securities or Exchange
Securities, shall have the meaning specified in the Applicable Trust
Agreement.
"Effective Time", in the case of (i) an Exchange Registration,
shall mean the time and date as of which the Commission declares the
Exchange Registration Statement effective or as of which the Exchange
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission
declares the Shelf Registration Statement effective or as of which the
Shelf Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(d)(ii) or
3(d)(iii).
"Exchange Act" shall mean the Securities Exchange Act of 1934,
or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
"Exchange Guarantee Agreement" shall have the meaning assigned
thereto in Section 2(a).
"Exchange Indenture" shall have the meaning assigned thereto
in Section 2(a).
"Exchange Issuer Trust" shall have the meaning assigned
thereto in Section 2(a).
"Exchange Junior Subordinated Debentures" shall have the
meaning assigned thereto in Section 2(a).
"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a).
"Exchange Registration" shall have the meaning assigned
thereto in Section 3(c).
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"Exchange Registration Statement" shall have the meaning
assigned thereto in Section 2(a).
"Exchange Securities" shall have the meaning assigned thereto
in Section 2(a).
"Exchange Trust Agreement" shall have the meaning assigned
thereto in Section 2(a).
"Guarantee Agreement" shall mean the Guarantee Agreement,
dated as of January 29, 1997, between the Company, as Guarantor, and
Wilmington Trust Company, as Guarantee Trustee, relating to the
Securities.
The term "holder" shall mean each of the Initial Purchasers
and other persons who acquire Registrable Securities from time to time
(including any successors or assigns), in each case for so long as
such person owns any Registrable Securities.
"Indenture" shall mean the Junior Subordinated Indenture,
dated as of January 29, 1997, between the Company and Wilmington Trust
Company, as Trustee, as the same shall be amended from time to time.
"Initial Purchasers" shall have the meaning assigned thereto
in the preamble.
"Issuer Trust" shall have the meaning assigned thereto in the
preamble.
"Junior Subordinated Debentures" shall mean the 8.92% Junior
Subordinated Deferrable Interest Debentures of the Company to be
issued to the Issuer Trust under the Indenture.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in
the form of Exhibit A hereto.
The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or
political subdivision thereof or governmental agency.
"Property Trustee", with respect to the Issuer Trust or the
Exchange Issuer Trust, shall mean the Property Trustee named under the
Applicable Trust Agreement.
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"Purchase Agreement" shall mean the Purchase Agreement, dated
January 24, 1997, among the Company, the Issuer Trust and the Initial
Purchasers.
"Registrable Securities" shall mean (i) in the circumstances
contemplated by Section 2(a) the Exchange Securities until the
Exchange Offer is completed as contemplated in Section 2(a), except
that any such Exchange Securities that, pursuant to the last two
sentences of Section 2(a), are included in a prospectus for use in
connection with resales by broker-dealers shall continue to be
Registrable Securities with respect to Sections 5, 6 and 9 until
resale of such Exchange Securities has been effected within the Resale
Period; (ii) in the circumstances contemplated by Section 2(b), the
Securities until such time as a registration statement registering
such Securities under the Securities Act has been declared or becomes
effective and such Securities have been sold or otherwise transferred
by the holder thereof pursuant to such effective registration
statement; provided a Registrable Security, whether under (i) or (ii)
above, shall cease to be a Registrable Security when (a) such
Registrable Security is sold pursuant to Rule 144 (or any successor
provision) promulgated under the Securities Act under circumstances in
which any legend borne by such Registrable Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Applicable
Indenture or such Registrable Securities are eligible to be sold
pursuant to paragraph (k) of Rule 144 or (b) such Registrable Security
shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto
in Section 2(c).
"Registration Expenses" shall have the meaning assigned
thereto in Section 4.
"Resale Period" shall have the meaning assigned thereto in
Section 2(a).
"Restricted Holder" shall mean (i) a holder who is an
affiliate of the Company within the meaning of Rule 405, (ii) a holder
that 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 and (iv) a holder
that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to the Exchange
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Offer in exchange for Securities acquired by the broker-dealer
directly from the Issuer Trust.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Securities" shall mean the 8.92% Capital Securities, Series A
(Liquidation Amount $1,000 per Security), to be issued under the Trust
Agreement and sold to the Initial Purchasers.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto
in Section 2(b).
"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b).
"Special Distributions" shall have the meaning assigned
thereto in Section 2(c).
"Special Interest" shall have the meaning assigned thereto in
Section 2(c).
"Trust Agreement" shall mean the Amended and Restated Trust
Agreement, dated as of January 29, 1997, among the Company, as
Depositor, Wilmington Trust Company, as Property Trustee, Wilmington
Trust Company, as Delaware Trustee, the Administrative Trustees named
therein, and the holders of the Trust Securities from time to time.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to
time.
"Trust Securities" shall mean, collectively, the Securities
and the Common Securities.
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 Agreement, and the
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words "herein," "hereof" and "hereunder" and other words of similar import
refer to this 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, the Company agrees to
file under the Securities Act, as soon as practicable, but no later than 60
days after the Closing Date, a registration statement (the "Exchange
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 (the "Exchange Securities") issued by an issuer trust
substantially identical to the Issuer Trust (the "Exchange Issuer Trust"),
which Exchange Securities shall be (i) substantially identical to the
Securities, except that such Exchange Securities shall have been registered
pursuant to an effective registration statement under the Securities Act and
shall not contain terms with respect to Special Distributions or transfer
restrictions, (ii) shall be issued pursuant to a trust agreement (the "Exchange
Trust Agreement") that (except with respect to the foregoing matters) is
substantially identical to the Trust Agreement and shall be qualified under the
Trust Indenture Act, and (iii) shall be entitled to a guarantee (the "Exchange
Guarantee Agreement") of the Company substantially identical to the Guarantee
Agreement, which Exchange Guarantee Agreement shall be qualified under the
Trust Indenture Act. The Company shall issue to the Exchange Issuer Trust, and
the Exchange Issuer Trust shall hold, junior subordinated debentures of the
Company (the "Exchange Junior Subordinated Debentures") that are substantially
identical to the Junior Subordinated Debentures, and are entitled to the
benefits of an indenture (the "Exchange Indenture") that is either the
Indenture or is substantially identical to the Indenture and that has been
qualified under the Trust Indenture Act. The Company agrees to use its best
efforts to cause the Exchange Registration Statement to become effective under
the Securities Act as soon as practicable, but no later than 180 days after the
Closing Date. The Exchange Offer shall be registered under the Securities Act
on the appropriate form and shall comply with all applicable tender offer rules
and regulations under the Exchange Act. The Company further agrees to use its
best efforts to commence and complete the Exchange Offer promptly, but no later
than 35 days after such registration statement has become effective, hold the
Exchange Offer open for at least 30 days and cause to be issued Exchange
Securities for all Securities that have been validly tendered and not withdrawn
on or prior to the expiration of the Exchange Offer. The Exchange Offer will be
deemed to have been "completed" only if the Exchange Securities received by
holders other than Restricted Holders in the Exchange Offer for Securities are,
upon receipt, transferable by each such holder without need for further
compliance with Section 5 of the Securities Act and the Exchange Act (except
for the requirement to deliver a prospectus included in the Exchange
Registration Statement applicable to resales by broker-dealers of Exchange
Securities received by such broker-dealer pursuant to
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the Exchange Offer in exchange for Securities other than those acquired by the
broker-dealer directly from the Issuer Trust), and without material
restrictions under the Blue Sky or securities laws of a substantial majority of
the States of the United States of America. The Exchange Offer shall be deemed
to have been completed upon the earlier to occur of (i) the Company's having
exchanged (or caused the exchange of) the Exchange Securities for all
outstanding Securities pursuant to the Exchange Offer and (ii) the Company's
having exchanged (or caused the exchange of), pursuant to the Exchange Offer,
Exchange Securities for all Securities that have been validly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be on a date
that is at least 30 days following the commencement of the Exchange Offer. The
Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in connection with any resales by a broker-dealer of
Exchange Securities received by such broker-dealer in the Exchange Offer in
exchange for Securities not acquired by such broker-dealer directly from the
Issuer Trust, and (y) to keep the Exchange 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 time as such
broker-dealers no longer own any such Exchange Securities. With respect to such
Exchange Registration Statement, each broker-dealer that holds Exchange
Securities received by such broker-dealer in the Exchange Offer in exchange for
Securities not acquired by it directly from the Issuer Trust shall have the
benefit of the rights of indemnification and contribution set forth in Sections
6(a), (c), (d) and (e) hereof.
(b) If prior to the time the Exchange Offer is completed either (A)
existing Commission interpretations are changed such that the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Securities are not or would not be, upon receipt, transferable by
each such holder without need for further compliance with Section 5 of the
Securities Act (except for the requirement to deliver a prospectus included in
the Exchange Registration Statement applicable to resales by broker-dealers of
Exchange Securities received by such broker-dealer in the Exchange Offer in
exchange for Securities not acquired by such broker-dealer directly from the
Issuer Trust), or (B) the Company or the Issuer Trust has received an opinion
of counsel experienced in such matters to the effect that, as a result of the
consummation of the Exchange Offer, there is more than an insubstantial risk
that (a) the Exchange Issuer Trust would be subject to United States federal
income tax with respect to income received or accrued on the Exchange Junior
Subordinated Debentures, (b) interest payable by the Company on the Exchange
Junior Subordinated Debentures would not be deductible by the Company, in whole
or in part, for United States federal income tax purposes, or (c) the Exchange
Issuer Trust would be subject to more than a de minimis amount of other taxes,
duties or other governmental charges, then in lieu of the Company's conducting
the Exchange Offer contemplated by Section 2(a), the Company and the Issuer
Trust shall use their best
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efforts to cause to be filed under the Securities Act as soon as practicable,
but no later than the later of 30 days after the time such obligation to file
arises and 60 days after the Closing Date, a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed
basis by the holders of, all of the Registrable Securities, pursuant to Rule
415 or any similar rule that may be adopted by the Commission (such filing, the
"Shelf Registration" and such registration statement, the "Shelf Registration
Statement"). The Company and the Issuer Trust agree to use their best efforts
to cause the Shelf Registration Statement to become or be declared effective no
later than 120 days after the date such Shelf Registration Statement is filed
and to keep such Shelf Registration continuously effective in order to permit
the prospectus forming a part thereof to be usable by holders for resales of
Registrable Securities for a period ending on the earlier of the third
anniversary of the date such Shelf Registration Statement is filed or such time
as there are no longer any Registrable Securities outstanding, provided,
however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the prospectus
forming a part thereof for resales of Registrable Securities unless such holder
is an Electing Holder, and (ii) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action reasonably
necessary to enable such holder to use the prospectus forming a part thereof
for resales of Registrable Securities, including, without limitation, any
action necessary to identify such holder as a selling securityholder in the
Shelf Registration Statement, provided, however, that nothing in this Clause
(ii) shall relieve any such holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. The Company and the Issuer Trust further agree to supplement
or make amendments to the Shelf Registration Statement, as and when required by
the rules, regulations or instructions applicable to the registration form used
by the Company and the Issuer Trust for such Shelf Registration Statement or by
the Securities Act or rules and regulations thereunder relating to shelf
registration, and the Company and the Issuer Trust agree to furnish to each
Electing Holder copies of any such supplement or amendment prior to its being
used or promptly following its filing with the Commission.
(c) If (i) the Exchange Registration Statement or Shelf Registration
Statement has not been filed on or before the date on which such registration
statement is required to be filed pursuant to Section 2(a) or 2(b),
respectively, or (ii) such Exchange Registration Statement or Shelf
Registration Statement has not become effective or been declared effective by
the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or 2(b),
respectively, or (iii) the Exchange Offer has not been completed within 35 days
after the initial effective date of the Exchange Registration Statement (if the
Exchange Offer is then required to be made), or (iv) any Exchange Registration
Statement or Shelf Registration Statement required
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by Section 2(a) or 2(b) is filed and declared effective but shall thereafter
either be withdrawn by the Company or shall become subject to an effective stop
order issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (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, as liquidated damages for
such Registration Default, subject to the provisions of Section 9(b),
additional interest (the "Special Interest") shall accrue in respect of the
Junior Subordinated Debentures, as provided therein, and additional
distributions (the "Special Distributions") shall accumulate in respect of the
Trust Securities, as provided in the Trust Agreement, in each case at a per
annum rate of 0.25% applicable to the principal amount of the Junior
Subordinated Debentures or the liquidation amount of the Trust Securities, as
the case may be, for the period from and including the date on which such
Registration Default occurs to but excluding the date on which such
Registration Default ceases to exist. Such Special Interest and Special
Distributions shall be calculated on the basis of a 365-day or 366-day year, as
the case may be, and the number of days elapsed during the relavent period and
shall be payable semi-annually in arrears on each Interest Payment Date (as
defined in the Indenture) or Distribution Date (as defined in the Trust
Agreement), as the case may be, together with (and in the same manner as) the
interest and Distributions otherwise payable in respect of the Junior
Subordinated Debentures or the Trust Securities, as the case may be. If the
Company elects to commence an Extension Period at any time when such Special
Interest and Special Distributions are payable, such Special Interest and
Special Distributions shall be deferred as and to the extent that the interest
and Distributions otherwise payable in respect of the Junior Subordinated
Debentures and Trust Securities are deferred.
(d) The Company shall take, and shall cause the Issuer Trust or
Exchange Issuer Trust, as the case may be, to take, all reasonable actions
necessary or advisable to be taken by it to ensure that the transactions
contemplated herein are effected as so contemplated, including all reasonable
actions necessary or desirable to register the Guarantee Agreement, the
Exchange Guarantee Agreement, the Junior Subordinated Debentures and the
Exchange Junior Subordinated Debentures, as may be required under the
Securities Act, under the registration statement contemplated in Section 2(a)
or 2(b) hereof, as applicable.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post- effective amendment to a registration statement as of any time shall
be deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
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3. Registration Procedures.
If the Company files or causes to be filed 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, the Company and the Issuer Trust shall
qualify the Applicable Indenture, the Applicable Trust Agreement and the
Applicable Guarantee Agreement under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the
appointment of a new trustee under the Applicable Indenture, the Company and
the Issuer Trust shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Applicable Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file, or cause to be prepared and filed, with
the Commission, as soon as practicable but no later than 60 days after
the Closing Date, an Exchange Registration Statement on any form which
may be utilized by the Company and the Exchange Issuer 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), and use its best efforts to cause such Exchange
Registration Statement to become effective as soon as practicable
thereafter, but no later than 180 days after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
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 Exchange Registration Statement, and promptly provide
each broker- dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder, as such
broker-dealer reasonably
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may request prior to the expiration of the Resale Period, for use in
connection with resales of Exchange Securities;
(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 Exchange
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 Exchange 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
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement
or the initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the Company
contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company or the Exchange Issuer
Trust of any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any 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 Exchange
Registration Statement, prospectus, prospectus amendment or supplement
or post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that the Company or the Exchange Issuer
Trust would be required, pursuant to Section 3(e)(iii)(F) above, to
notify any broker-dealers holding Exchange Securities, without
unreasonable 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 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;
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(v) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such Exchange
Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(vi) use its reasonable best efforts to (A) register or
qualify the Exchange Securities under the securities laws or blue sky
laws of such jurisdictions as are contemplated by Section 2(a) no
later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in
such jurisdictions until the expiration of the Resale Period and (C)
take any and all other actions as may be reasonably necessary or
advisable to enable each broker-dealer holding Exchange Securities to
consummate the disposition thereof in such jurisdictions; provided,
however, that neither the Company nor the Exchange Issuer Trust shall
be required for any such purpose to (1) qualify as a foreign
corporation or trust, as the case may be, in any jurisdiction wherein
it would not otherwise be required to qualify but for the requirements
of this Section 3(c)(vi), (2) consent to general service of process in
any such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders or the Exchange Trust Agreement;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to 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;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but no later than eighteen months after the
effective date of such Exchange Registration Statement, an earning
statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act (including, at the option of the Company,
Rule 158 thereunder).
(d) In connection with the Company's and the Issuer Trust's
obligations with respect to the Shelf Registration, if applicable, the Company
and the Issuer Trust shall, as soon as practicable (or as otherwise specified):
(i) prepare and file, or cause to be prepared and filed, with
the Commission, as soon as practicable but in any case within the time
periods
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15
specified in Section 2(b), a Shelf Registration Statement on any form
which may be utilized by the Company and the Issuer Trust and which
shall register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from time
to time, may be Electing Holders and use its reasonable best efforts
to cause such Shelf Registration Statement to become effective as soon
as practicable but in any case within the time periods specified in
Section 2(b);
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time, and no holder shall
be entitled to use the prospectus forming a part thereof for resales
of Registrable Securities at any time, unless such holder has returned
a completed and signed Notice and Questionnaire to the Company by the
deadline for response set forth therein; provided, however, holders of
Registrable Securities shall have at least 28 calendar days from the
date on which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and Questionnaire to
the Company;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company and the Issuer
Trust shall not be required to take any action to name such holder as
a selling securityholder in the Shelf Registration Statement or to
enable such holder to use the prospectus forming a part thereof for
resales of Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Shelf 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 Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being used
or filed with the Commission;
(v) comply with the provisions of the Securities Act with
respect to the disposition of all of the Registrable Securities
covered by such Shelf
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16
Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf
Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this 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) any sales or placement agent
therefor, (D) counsel for any such underwriter or agent and (E) not
more than one counsel for all the Electing Holders the opportunity to
participate in the preparation of such Shelf Registration Statement,
each prospectus included therein or filed with the Commission and each
amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, and throughout the period specified in
Section 2(b), make available at reasonable times at the Company's
principal place of business or such other reasonable place for
inspection by the persons referred to in Section 3(d)(vi) who shall
certify to the Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such
financial and other information and books and records of the Company,
and cause the officers, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries, as
shall be reasonably necessary, in the judgment of the respective
counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act;
provided, however, that each such party shall be required to maintain
in confidence and not to disclose to any other person any information
or records reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of
such requirement), or (C) such information is required to be set forth
in such Shelf Registration Statement or the prospectus included
therein or in an amendment to such Shelf Registration Statement or an
amendment or supplement to such prospectus in order that such Shelf
Registration Statement, prospectus, amendment or supplement, as the
case may be, complies with applicable requirements of the federal
securities laws and the rules and regulations of the Commission and
does not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein or
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17
necessary to make the statements therein not misleading in light of
the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales
or placement agent therefor and any underwriter thereof (which
notification may be made through any managing underwriter that is a
representative of such underwriter for such purpose) and confirm such
advice in writing, (A) when such Shelf 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
Shelf 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 Shelf Registration Statement or prospectus or
for additional information, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of such Shelf Registration
Statement or the initiation or threatening of any proceedings for that
purpose, (D) if at any time the representations and warranties of the
Company contemplated by Section 3(d)(xvii) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) if at any time when a prospectus is required to
be delivered under the Securities Act, such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to
the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
(ix) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested by any managing underwriter or underwriters,
any placement or sales agent or any Electing Holder, 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 Electing Holder specifies should be
included therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the
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18
liquidation amount of Registrable Securities being sold by such
Electing Holder or agent or to any underwriters, the name and
description of such Electing 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 Electing 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;
(xi) furnish to each Electing Holder, each placement or sales
agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(d)(vi) an executed copy
(or, in the case of an Electing Holder, a conformed copy) of such
Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of
an Electing Holder of Registrable Securities, upon request) and
documents incorporated by reference therein) and such number of copies
of such Shelf Registration Statement (excluding exhibits thereto and
documents incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as the case
may be) and of the prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, and
such other documents, as such Electing 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
Electing Holder, offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and underwriter
to satisfy the prospectus delivery requirements of the Securities Act;
and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment
or supplement thereto by each such Electing Holder and by any such
agent and underwriter, in each case in the form most recently provided
to such person by the Company, 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;
(xii) use its reasonable best efforts to (A) register or
qualify the Registrable Securities to be included in such Shelf
Registration Statement under such securities laws or blue sky laws of
such jurisdictions as any Electing Holder and each placement or sales
agent, if any, therefor and
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underwriter, if any, thereof shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in
such jurisdictions during the period the Shelf Registration is
required to remain effective under Section 2(b) above and for so long
as may be necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Registrable Securities
pursuant to such Shelf Registration Statement and (C) take any and all
other actions as may be reasonably necessary or advisable to enable
each such Electing Holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities; provided, however, that neither the Company nor the Issuer
Trust shall be required for any such purpose to (1) qualify as a
foreign corporation or trust, as the case may be, in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xii), (2) consent to general service
of process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it
and its stockholders or the Trust Agreement;
(xiii) use its reasonable best efforts to obtain the consent
or approval of each governmental agency or authority, whether federal,
state or local, which may be required to 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;
(xiv) cooperate with the Electing Holders 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 (consistent with the Trust Agreement) at
least two business days prior to any sale of the Registrable
Securities;
(xv) provide a CUSIP number for all Registrable Securities,
not later than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including customary
provisions relating to indemnification and contribution, and take such
other actions in connection therewith as any Electing Holders
aggregating at least 20% in aggregate
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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;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any
portion of the offering contemplated by the Shelf Registration 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
Electing Holders and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof substantially the same as those
set forth in Section 1 of the Purchase Agreement; (B) obtain an
opinion of counsel to the Company or the Issuer Trust, as applicable,
in customary form and covering matters customarily covered by such an
opinion, as the managing underwriters, if any, or as any Electing
Holders of at least 20% in aggregate liquidation amount of the
Registrable Securities at the time outstanding may reasonably request,
addressed to such Electing Holder or Electing Holders and the
placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such Shelf Registration
Statement (and if such Shelf 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 an opinion shall be substantially the same as the opinions
provided for in Sections 4(b), (c), (d) and (f) of the Purchase
Agreement); (C) obtain a "cold comfort" letter or letters from the
independent certified public accountants of the Company addressed to
the selling Electing Holders, the placement or sales agent, if any,
therefor or the underwriters, if any, thereof, dated (i) the effective
date of such Shelf Registration Statement and (ii) the effective date
of any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus (and, if such Shelf
Registration Statement contemplates an underwritten offering pursuant
to any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the
latest such statements included in such prospectus, dated the date of
the closing under the underwriting agreement relating thereto), such
letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may
be reasonably requested by any Electing Holders of at least 20% in
aggregate
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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 the Company
or the Issuer Trust; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are
provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable
Securities of any proposal by the Company or the Issuer Trust to amend
or waive any provision of this 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;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling group
or "assist in the distribution" (within the meaning of the Rules of
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) thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and
By-Laws, including by (A) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in such
Schedule (or any successor thereto)) to participate in the preparation
of the Shelf 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 Shelf
Registration Statement is an underwritten offering or is made through
a placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 6 hereof (or to such other customary extent as may
be requested 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 of Fair
Practice of the NASD; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as
soon as practicable but in any event not later than eighteen months
after the effective date of such Shelf Registration Statement, an
earning statement of the
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Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
(e) In the event that the Company and the Issuer Trust would be
required, pursuant to Section 3(d)(viii)(F) above, to notify the Electing
Holders, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company and the Issuer Trust shall without
delay prepare and furnish to each of the Electing Holders, to each placement or
sales agent, if any, and to each such underwriter, if any, a reasonable number
of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such prospectus shall
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon receipt of
any notice from the Company or the Issuer Trust pursuant to Section
3(d)(viii)(F) hereof, such Electing Holder shall forthwith discontinue the
disposition of Registrable Securities pursuant to the Shelf Registration
Statement applicable to such Registrable Securities until such Electing Holder
shall have received copies of such amended or supplemented prospectus, and if
so directed by the Company or the Issuer Trust, such Electing Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Electing Holder's possession of the
prospectus covering such Registrable Securities at the time of receipt of such
notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
Questionnaire, the Company and the Issuer Trust may require such Electing
Holder to furnish to the Company such additional information regarding such
Electing Holder and such Electing Holder's intended method of distribution of
Registrable Securities as may be required in order to comply with the
Securities Act. Each such Electing Holder agrees to notify the Company and the
Issuer Trust as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder to the Company and the
Issuer Trust or of the occurrence of any event in either case as a result of
which any prospectus relating to such Shelf Registration contains or would
contain an untrue statement of a material fact regarding such Electing Holder
or such Electing Holder's intended method of disposition of such Registrable
Securities or omits to state any material fact regarding such Electing Holder
or such Electing Holder's intended method of disposition of such Registrable
Securities required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and
promptly to furnish to the Company and the Issuer Trust any additional
information required to correct and update any previously furnished information
or required so that such prospectus shall
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23
not contain, with respect to such Electing Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(g) Until the expiration of three years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined in
Rule 144) to, resell any of the Securities or Junior Subordinated Debentures
that have been reacquired by any of them except pursuant to an effective
registration statement under the Securities Act.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Agreement, including (a) all Commission and any NASD registration, filing and
review fees and expenses including fees and disbursements of counsel for the
placement or sales agent or underwriters in connection with such registration,
filing and review, (b) all fees and expenses in connection with the
qualification of the Registrable Securities for offering and sale under the
State securities and blue sky laws referred to in Section 3(d)(xii) hereof and
determination of their eligibility for investment under the laws of such
jurisdictions as any managing underwriters or the Electing Holders may
designate, including any fees and disbursements of counsel for the Electing
Holders (subject to the limitations of Clause (i) below) or underwriters in
connection with such qualification and determination, (c) all expenses relating
to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Registrable
Securities for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities to be disposed of (including
certificates representing the Registrable Securities), (d) messenger, telephone
and delivery expenses relating to the offering, sale or delivery of Registrable
Securities and the preparation of documents referred in clause (c) above, (e)
fees and expenses of the Trustee (as defined in the Applicable Indenture) under
the Applicable Indenture, the Property Trustee and Delaware Trustee and
Administrative Trustees (as defined in the Applicable Trust Agreement) under
the Applicable Trust Agreement and the Guarantee Trustee (as defined in the
Applicable Guarantee) under the Applicable Guarantee and of any collateral
agent or custodian, (f) internal expenses (including all salaries and expenses
of the Company's officers and employees performing legal or accounting duties),
(g) fees, disbursements and expenses of counsel and independent certified
public accountants
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of the Company (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)(xix) hereof, (i) fees, disbursements and expenses of
one counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority in
aggregate liquidation amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Company), (j)
any fees charged by securities rating services for rating the Registrable
Securities, and (k) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that
any Registration Expenses are incurred, assumed or paid by any holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
Each of the Company and the Issuer Trust represents and warrants to,
and agrees with, the Initial Purchasers and each of the holders from time to
time of Registrable Securities that:
(a) Each registration statement covering Registrable
Securities and each prospectus (including any preliminary or summary
prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof and any further amendments or supplements to any
such registration statement or prospectus, when it becomes effective
or is filed with the Commission, as the case may be, and, in the case
of an underwritten offering of Registrable Securities, at the time of
the closing under the underwriting agreement relating thereto, will
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and at all times subsequent to the Effective
Time when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been
given to holders of Registrable Securities pursuant
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25
to Section 3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii)
such time as the Company furnishes an amended or supplemented
prospectus pursuant to Section 3(e) or Section 3(c)(iv) hereof, each
such registration statement, and each prospectus (including any
summary prospectus) contained therein or furnished pursuant to Section
3(d) or Section 3(c) hereof, as then amended or supplemented, will
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by a holder of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may
be, will conform or conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable,
and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any subsidiary of the Company is
a party or by which the Company or any subsidiary of the Company is
bound or to which any of the property or assets of the Company or any
subsidiary of the Company is subject, nor will such action result in
any violation of the provisions of the certificate of incorporation,
as amended, or the by-laws of the Company or the Trust Agreement of
the Issuer Trust or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any subsidiary of the Company or any of their properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the
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26
consummation by the Company and the Issuer Trust of the transactions
contemplated by this Agreement, except the registration under the
Securities Act of the Registrable Securities, qualification of the
Applicable Indenture, the Applicable Trust Agreement and Applicable
Guarantee Agreement under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under State securities or Blue Sky laws in connection with
the offering and distribution of the Registrable Securities.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company and the Issuer Trust. Each of the
Company and the Issuer Trust shall, and they hereby agree, jointly and
severally, to, indemnify and hold harmless each of the holders of Registrable
Securities included in an Exchange Registration Statement, each of the Electing
Holders of Registrable Securities included in a Shelf Registration Statement
and each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable Securities against any
losses, claims, damages or liabilities, joint or several, to which such holder,
agent or underwriter may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Registration Statement
or Shelf Registration Statement, as the case may be, under which such
Registrable Securities were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by the
Company, the Issuer Trust or the Exchange Issuer Trust to any such holder,
Electing Holder, agent or underwriter, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and each of the Company and the Issuer Trust
shall, and it hereby agrees to, reimburse such holder, such Electing Holder,
such agent and such underwriter for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that neither the
Company nor the Issuer Trust shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company or the Issuer
Trust by such person expressly for use therein;
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27
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company and the Issuer Trust may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2(b) hereof and to entering into any underwriting agreement with respect
thereto, that the Company and the Issuer Trust shall have received an
undertaking reasonably satisfactory to it from the Electing Holder of such
Registrable Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to (i) indemnify and hold harmless the
Company and the Issuer Trust, and all other holders of Registrable Securities,
against any losses, claims, damages or liabilities to which the Company or such
other holders of Registrable Securities may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by such Electing Holder or underwriter expressly for use
therein, and (ii) reimburse the Company and the Issuer Trust for any legal or
other expenses reasonably incurred by the Company or the Issuer Trust in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no such Electing Holder shall be
required to undertake liability to any person under this Section 6(b) for any
amounts in excess of the dollar amount of the proceeds to be received by such
Electing Holder from the sale of such Electing Holder's Registrable Securities
pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement
of any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party pursuant to the indemnification
provisions of or contemplated by this Section 6, notify such indemnifying party
in writing of the commencement of such action; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may
have to any indemnified party other than under the indemnification provisions
of or contemplated by Section 6(a) or 6(b) hereof. In case any such action
shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who
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28
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified party in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 6(d) were determined by pro rata allocation (even if the
holders or any agents or underwriters or all of them were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 6(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, or liabilities (or actions in respect thereof) referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 6(d), no holder shall be required to contribute any amount in excess of
the amount by which the dollar amount of the proceeds received by such holder
from the sale of any Registrable
-26-
29
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, and no underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in proportion
to the liquidation amount of Registrable Securities registered or underwritten,
as the case may be, by them and not joint.
(e) The obligations of the Company and the Issuer Trust under this
Section 6 shall be in addition to any liability which the Company and the
Issuer Trust may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations of
the holders and any agents or underwriters contemplated by this Section 6 shall
be in addition to any liability which the respective holder, agent or
underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his consent, is named in any registration statement as about to
become a director of the Company), to each Issuer Trustee under the Applicable
Trust Agreement and to each person, if any, who controls the Company and the
Issuer Trust within the meaning of the Securities Act.
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 Electing Holders holding 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 Company.
(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
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approved by the persons entitled hereunder to approve such arrangements and
(ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company 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 Company and the Issuer
Trust 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 Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company or the Issuer Trust fails to
perform any of their respective obligations hereunder and that the Initial
Purchasers and the holders from time to time of the Registrable Securities may
be irreparably harmed by any such failure, and accordingly agree that the
Initial Purchasers and such holders, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to compel specific
performance of the respective obligations of the Company and the Issuer Trust
under this Agreement in accordance with the terms and conditions of this
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
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31
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: If to the Company, to it at Xxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: X. Xxxxx Oakley, if to
the Issuer Trust, to it at Wilmington Trust Company, Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration, and if to a holder, to the address of such holder set forth in
the security register or other records of the Company or the Issuer Trust, or
to such other address as the Company or any such holder 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
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and the holders from time to time of the
Registrable Securities and the respective successors and assigns of the parties
hereto and such holders. In the event that any transferee of any holder of
Registrable Securities shall acquire Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed
a beneficiary hereof for all purposes and such Registrable Securities shall be
held subject to all of the terms of this 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 all of
the applicable terms and provisions of this Agreement. If the Company 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 applicable
terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf of
any holder of Registrable Securities, any director, officer or partner of such
holder, any agent or underwriter or any director, officer or partner thereof,
or any controlling person of any of the foregoing, and shall survive delivery
of and payment for the Registrable Securities pursuant to the Purchase
Agreement and the transfer and registration of Registrable Securities by such
holder and the consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this
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Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
(h) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Applicable Indenture, Applicable
Trust Agreement and Applicable Guarantee and the form of Securities) or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a
written instrument duly executed by the Company and the holders of at least a
majority in aggregate liquidation 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 Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on
any business day by any holder of Registrable Securities for proper purposes
only (which shall include any purpose related to the rights of the holders of
Registrable Securities under the Registrable Securities, the Applicable
Indenture, the Applicable Trust Agreement, the Applicable Guarantee Agreement
and this Agreement) at the offices of the Company at the address thereof set
forth in Section 9(c) above and at the office of the Trustee under the
Applicable Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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Agreed to and accepted as of the date referred to above.
THE COLONIAL BANCGROUP
By:_____________________________
Name:
Title:
COLONIAL CAPITAL I
By:_____________________________
Name:
Title: Administrative Trustee
BEAR, XXXXXXX & CO. INC.
By:_____________________________
Name:
Title:
XXXXX, XXXXXXXX & XXXXX, INC.
By:_____________________________
Name:
Title:
34
Exhibit A
Colonial Capital I
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]*
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in the Colonial Captial I (the
"Trust") 8.92% Capital Securities, Series A (the "Securities") are held.
The Trust is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order
to have their Securities included in the registration statement, beneficial
owners must complete and return the enclosed Notice of Registration Statement
and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a
copy of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials
or have any questions pertaining to this matter, please contact Colonial
Capital I, c/o The Colonial BancGroup, Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000, Attention: X. Xxxxx Oakley.
____________________
* Not less than 28 calendar days from date of mailing.
35
Colonial Capital I
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement") among The Colonial
BancGroup, Inc., Colonial Captial I (the "Trust") and the Initial Purchasers
named therein. Pursuant to the Exchange and Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission
(the "Commission") a registration statement on Form [___] (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Trust's
8.92% Capital Securities, Series A (the "Securities"). A copy of the Exchange
and Registration Rights Agreement is attached hereto. All capitalized terms
not otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included
in the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not
use the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and
Registration Rights Agreement.
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36
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trust the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information
to the Company and represents and warrants that such information is accurate
and complete:
A-3
37
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
_______________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
_______________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
_______________________________________________________________________
(2) Address for Notices to Selling Securityholder:
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Telephone: _____________________
Fax: _____________________
Contact Person: _____________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Liquidation amount of Registrable Securities beneficially
owned:_____________________________________________________________________
CUSIP No(s). of such Registrable Securities:__________________________
(b) Liquidation amount of Securities other than Registrable Securities
beneficially owned:________________________________________________________
A-4
38
CUSIP No(s). of such other Securities: _______________________________
(c) Liquidation amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration
Statement:_____________________________________________________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:___________________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities
may be sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of sale,
or at negotiated prices. Such sales may be effected in transactions (which may
involve crosses or block transactions) (i) on any national securities exchange
or quotation service on which the Registered Securities may be listed or
A-5
39
quoted at the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In connection
with sales of the Registrable Securities or otherwise, the Selling
Securityholder may enter into hedging transactions with broker-dealers, which
may in turn engage in short sales of the Registrable Securities in the course
of hedging the positions they assume. The Selling Securityholder may also sell
Registrable Securities short and deliver Registrable Securities to close out
such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Rule 10b-6.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and
A-6
40
pursuant to the Exchange and Registration Rights Agreement shall be made in
writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
The Colonial BancGroup, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: X. Xxxxx Oakley.
(ii) With a copy to:
Miller, Hamilton, Xxxxxx & Xxxx, L.L.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
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41
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: _________________________
---------------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
------------------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT
ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Miller, Hamilton, Xxxxxx & Xxxx, L.L.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
A-8
42
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Colonial Capital Trust I
c/o The Colonial BancGroup, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Administrative Trustee
Re: Colonial Capital I (the "Trust")
8.92% Capital Securites, Series A
-------------------------------------
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate liquidation amount of the above-referenced Securities
pursuant to an effective Registration Statement on Form [___] (File No.
333-____) filed by The Colonial BancGroup, Inc.
We hereby certify that the prospectus delivery requirements, if any,
of the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Securities is named as a "Selling Holder"
in the Prospectus dated ___________, 199_ or in supplements thereto, and that
the aggregate liquidation amount of the Securities transferred are the
Securities listed in such Prospectus opposite such owner's name.
Dated:
Very truly yours,
________________________
(Name)
By: ________________________
(Authorized Signature)
B-1
