EXHIBIT 4.7
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REGISTRATION RIGHTS AGREEMENT
Dated June 3, 1997
among
PROGRESS FINANCIAL CORPORATION
PROGRESS CAPITAL TRUST I
and
SANDLER X'XXXXX & PARTNERS, L.P.
as Initial Purchaser
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of June 3, 1997 among PROGRESS FINANCIAL CORPORATION, a
Delaware corporation (the "Corporation"), PROGRESS CAPITAL TRUST I, a
business trust formed under the laws of the state of Delaware (the "Trust"),
and SANDLER X'XXXXX & PARTNERS, L.P. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated June
3, 1997 (the "Purchase Agreement"), among the Corporation, as issuer of the
Series A 10.50% Junior Subordinated Deferrable Interest Debentures due June
1, 2027 (the "Subordinated Debentures"), the Trust and the Initial Purchaser,
which provides for, among other things, the sale by the Trust to the Initial
Purchaser of 15,000 of the Trust's Series A 10.50% Capital Securities,
liquidation amount $1,000 per Capital Security (the "Capital Securities"),
the proceeds of which will be used by the Trust to purchase Subordinated
Debentures. The Capital Securities, together with the Subordinated
Debentures and the Corporation's guarantee of the Capital Securities (the
"Capital Securities Guarantee"), are collectively referred to as the
"Securities". In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Corporation and the Trust have agreed to provide to
the Initial Purchaser and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Additional Distributions" shall have the meaning set forth in Section
2(e) hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
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"Business Day" means any day other than a Saturday, a Sunday, or a day on
which banking institutions in New York, New York, Wilmington, Delaware or
Blue Xxxx, Pennsylvania are authorized or required by law or executive order
to close.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Corporation" shall have the meaning set forth in the preamble to this
Agreement and also includes the Corporation's successors and permitted
assigns.
"Declaration" or "Declaration of Trust" shall mean the Amended and
Restated Declaration of Trust of Progress Capital Trust I, dated as of June
3, 1997, by the trustees named therein and the Corporation as sponsor.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Trust; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Offer" shall mean the offer by the Corporation and the Trust to
the Holders to exchange all of the Registrable Securities (other than Private
Exchange Securities) for a like principal amount of Exchange Securities
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Exchange Securities" shall mean (i) with respect to the Subordinated
Debentures, the Series B 10.50% Junior Subordinated Deferrable Interest
Debentures due June 1, 2027 (the "Exchange Debentures") containing terms
substantially identical to the Subordinated Debentures (except that they will
not contain terms with respect to the transfer restrictions under the Securities
Act
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(other than requiring minimum transfers thereof to be in blocks of $100,000
aggregate principal amount), and will not provide for any Liquidated Damages
thereon), (ii) with respect to the Capital Securities, the Trust's Series B
10.50% Capital Securities, liquidation amount $1,000 per Capital Security
(the "Exchange Capital Securities") which will have terms substantially
identical to the Capital Securities (except they will not contain terms with
respect to transfer restrictions under the Securities Act (other than
requiring minimum transfers thereof to be in blocks of $100,000 aggregate
liquidation amount), and will not provide for any increase in Additional
Distributions thereon) and (iii) with respect to the Capital Securities
Guarantee, the Corporation's guarantee (the "Exchange Capital Securities
Guarantee") of the Exchange Capital Securities which will have terms
substantially identical to the Capital Securities Guarantee.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture or Declaration of Trust.
"Indenture" shall mean the Indenture relating to the Subordinated
Debentures and the Exchange Debentures dated as of June 3, 1997 between the
Corporation, as issuer, and The Bank of New York, as trustee, as the same may
be amended from time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble to
this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean June 3, 1997, the date of original issuance of
the Securities.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability corporation, or a government
or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
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"Private Exchange Securities" shall have the meaning set forth in Section
2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Securities and, if issued, the
Private Exchange Securities; provided, however, that Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities
or Private Exchange Securities for the exchange or resale thereof, as the
case may be, shall have been declared effective under the Securities Act and
such Securities or Private Exchange Securities, as the case may be, shall
have been disposed of pursuant to such Registration Statement, (ii) such
Securities or Private Exchange Securities, as the case may be, shall have
been sold to the public pursuant to Rule 144(k) (or any similar provision
then in force, but not Rule 144A) under the Securities Act or are eligible to
be sold without restriction as contemplated by Rule 144(k), (iii) such
Securities or Private Exchange Securities, as the case may be, shall have
ceased to be outstanding or (iv) with respect to the Securities, such
Securities shall have been exchanged for Exchange Securities upon
consummation of the Exchange Offer and are thereafter freely tradeable by the
holder thereof (other than an Affiliate of the Corporation).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Corporation with this Agreement,
including without limitation: (i) all SEC or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the fees and expenses of any "qualified independent
underwriter" (and its counsel) that is required to be retained by any Holder
of Registrable Securities in accordance with the rules and regulations of the
NASD, (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and
disbursements of one counsel for all underwriters or Holders as a group in
connection with blue sky qualification
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of any of the Exchange Securities or Registrable Securities) and compliance
with the rules of the NASD, (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) the fees and disbursements of
counsel for the Corporation and of the independent certified public
accountants of the Corporation, including the expenses of any "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
fees and expenses of the Trustee and its counsel and any exchange agent or
custodian, (vii) all fees and expenses incurred in connection with the
listing, if any, of any of the Exchange Securities or the Registrable
Securities on any securities exchange or exchanges, and (viii) the reasonable
fees and expenses of any special experts retained by the Corporation in
connection with any Registration Statement.
"Registration Statement" shall mean any registration statement of the
Corporation and the Trust which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities
Act (or similar successor rule)) commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Corporation and the Trust pursuant to the
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provisions of Section 2(b) hereof which covers all of the Registrable
Securities or all of the Private Exchange Securities, as the case may be, on
an appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments and supplements to
such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustees" shall mean any and all trustees with respect to (i) the
Capital Securities under the Declaration, (ii) the Subordinated Debentures
under the Indenture and (iii) the Capital Securities Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
Corporation and the Trust shall, for the benefit of the Holders, use their
reasonable best efforts to (i) cause to be filed with the SEC within 150 days
after the Issue Date an Exchange Offer Registration Statement on an
appropriate form under the Securities Act relating to the Exchange Offer,
(ii) cause such Exchange Offer Registration Statement to be declared
effective under the Securities Act by the SEC not later than the date which
is 180 days after the Issue Date, and (iii) keep such Exchange Offer
Registration Statement effective for not less than 30 calendar days (or
longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to the Holders. Upon the effectiveness of the Exchange Offer
Registration Statement, the Corporation and the Trust shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable
each Holder eligible and electing to exchange Registrable Securities for a
like principal amount of Exchange Debentures or a like liquidation amount of
Exchange Capital Securities, together with the Exchange Guarantee, as
applicable (assuming that such Holder (i) is not an Affiliate of the Trust or
the Corporation, (ii) is not a broker-dealer tendering Registrable Securities
acquired directly from the Corporation for its own account, (iii) acquires
the Exchange Securities in the ordinary course of such Holder's business and
(iv) has no arrangements or understandings with any Person to participate in
the Exchange Offer for the purpose of distributing the Exchange Securities)
to transfer such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and under state
securities or blue sky laws (other than requiring minimum transfers in blocks
having an aggregate principal or liquidation amount, as the case may be, of
$100,000).
In connection with the Exchange Offer, the Corporation and the Trust
shall:
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(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law) (such period referred to herein as the
"Exchange Period");
(iii) utilize the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior to
the close of business, New York time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Securities delivered for exchange, and a
statement that such Holder is withdrawing his election to have such
Securities exchanged;
(v) notify each Holder that any Security not tendered by such Holder in
the Exchange Offer will remain outstanding and continue to accrue interest or
accumulate distributions, as the case may be, but will not retain any rights
under this Agreement (except in the case of the Initial Purchaser and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside
counsel that it is not eligible to participate in the Exchange Offer with
respect to the exchange of Securities constituting any portion of an unsold
allotment in the initial distribution, as soon as practicable upon receipt by
the Corporation and the Trust of a written request from such Initial
Purchaser, the Corporation and the Trust, as applicable, shall issue and
deliver to such Initial Purchaser in exchange (the "Private Exchange") for
the Securities held by such Initial Purchaser, a like liquidation amount of
Capital Securities of the Trust or, in the event the Trust is liquidated and
Subordinated Debentures are distributed, a like principal amount of the
Subordinated Debentures of the Corporation, together with the Exchange
Guarantee, in each case that are identical (except that such securities may
bear a customary legend with respect to restrictions on transfer pursuant to
the Securities Act) to the Exchange Securities (the "Private Exchange
Securities") and which are issued pursuant to the Indenture, the Declaration
or the Guarantee (which provides that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture or the
Declaration, as applicable (other than requiring minimum transfers in blocks
having
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an aggregate principal or liquidation amount, as the case may be, of
$100,000), and that the Exchange Securities, the Private Exchange Securities
and the Securities will vote and consent together on all matters as one class
and that neither the Exchange Securities, the Private Exchange Securities nor
the Securities will have the right to vote or consent as a separate class on
any matter). The Private Exchange Securities shall be of the same series as
the Exchange Securities and the Corporation and the Trust will seek to cause
the CUSIP Service Bureau to issue the same CUSIP Numbers for the Private
Exchange Securities as for the Exchange Securities issued pursuant to the
Exchange Offer.
As soon as practicable after the close of the Exchange Offer and, if
applicable, the Private Exchange, the Corporation and the Trust, as the case
requires, shall:
(i) accept for exchange all Securities or portions thereof tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee for
cancellation all Securities or portions thereof so accepted for exchange by
the Corporation; and
(iii) issue, and cause the applicable Trustee under the Indenture, the
Declaration or the Guarantee, as applicable, to promptly authenticate and
deliver to each Holder, new Exchange Securities or Private Exchange
Securities, as applicable, equal in principal amount to the principal amount
of the Subordinated Debentures or equal in liquidation amount to the
liquidation amount of the Capital Securities (together with the guarantee
thereof) as are surrendered by such Holder.
Distributions on each Exchange Capital Security and interest on each
Exchange Debenture and Private Exchange Security issued pursuant to the
Exchange Offer and in the Private Exchange will accrue from the last date on
which a Distribution or interest was paid on the Capital Security or the
Subordinated Debenture surrendered in exchange therefor or, if no
Distribution or interest has been paid on such Capital Security or
Subordinated Debenture, from the Issue Date. To the extent not prohibited by
any law or applicable interpretation of the staff of the SEC, the Corporation
and the Trust shall use their reasonable best efforts to complete the
Exchange Offer as provided above, and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable
laws in connection with the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the staff of the
SEC. Each Holder of Registrable Securities who wishes to exchange such
Registrable Securities for Exchange Securities in the Exchange Offer will be
required to make certain customary representations in connection
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therewith, including, in the case of any Holder of Capital Securities,
representations that (i) it is not an Affiliate of the Trust or the
Corporation, (ii) the Exchange Securities to be received by it were acquired
in the ordinary course of its business and (iii) at the time of the Exchange
Offer, it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Capital Securities. The Corporation and the Trust shall inform the Initial
Purchaser, after consultation with the applicable Trustees, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchaser shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are
Private Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Corporation and the Trust shall have no further
obligation to register the Registrable Securities (other than Private
Exchange Securities) held by any Holder pursuant to Section 2(b) of this
Agreement.
(b) Shelf Registration. In the event that (i) the Corporation, the
Trust or the Majority Holders reasonably determine, after conferring with
counsel (which may be in-house counsel), that the Exchange Offer Registration
provided in Section 2(a) above is not available under applicable law and
regulations and currently prevailing interpretations of the staff of the SEC,
(ii) the Corporation shall determine in good faith that there is a reasonable
likelihood that, or a material uncertainty exists as to whether, consummation
of the Exchange Offer would result in (x) the Trust becoming subject to
federal income tax with respect to income received or accrued on the
Subordinated Debentures or the Exchange Debentures (collectively, the
"Debentures"), (y) interest payable by the Corporation on the Debentures not
being deductible by the Corporation for United States federal income tax
purposes or (z) the Trust becoming subject to more than a de minimus amount
of other taxes, duties or governmental charges, (iii) the Exchange Offer
Registration Statement is not declared effective within 180 days of the Issue
Date or (iv) upon the request of the Initial Purchaser with respect to any
Registrable Securities held by it, if such Initial Purchaser is not
permitted, in the opinion of Xxxxxxx, Xxxxxx & Xxxxxxxx, pursuant to
applicable law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are
freely tradeable without restriction under the Securities Act and applicable
blue sky or state securities laws (any of the events specified in (i)-(iv)
being a "Shelf Registration Event" and the date of occurrence thereof, the
"Shelf Registration Event Date"), then in addition to or in lieu of
conducting the Exchange Offer contemplated by Section
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2(a), as the case may be, the Corporation and the Trust shall use their
reasonable best efforts to cause to be filed as promptly as practicable after
such Shelf Registration Event Date, as the case may be, and, in any event,
within 45 days after such Shelf Registration Event Date (which shall be no
earlier than 75 days after the Closing Time), a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Securities
(except in the case of clause (iv) above in which case the Shelf Registration
Statement need cover only the Registrable Securities held by the Initial
Purchaser, and shall use its reasonable best efforts to have such Shelf
Registration Statement declared effective by the SEC as soon as practicable.
No Holder of Registrable Securities shall be entitled to include any of its
Registrable Securities in any Shelf Registration pursuant to this Agreement
unless and until such Holder furnishes to the Corporation and the Trust in
writing, within 15 days after receipt of a request therefor, such information
as the Corporation and the Trust may, after conferring with counsel with
regard to information relating to Holders that would be required by the SEC
to be included in such Shelf Registration Statement or Prospectus included
therein, reasonably request for inclusion in any Shelf Registration Statement
or Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish to the Corporation and the
Trust all information with respect to such Holder necessary to make the
information previously furnished to the Corporation by such Holder not
materially misleading.
The Corporation and the Trust agree to use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective and
usable for resales for (a) the Rule 144(k) Period in the case of a Shelf
Registration Statement filed pursuant to Section 2(b)(i), (ii) or (iii) or
(b) 180 days in the case of a Shelf Registration Statement filed pursuant to
Section 2(b)(iv) (subject in each case to extension pursuant to the last
paragraph of Section 3 hereof), or for such shorter period which will
terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding (the "Effectiveness Period"). The
Corporation and the Trust shall not permit any securities other than
Registrable Securities to be included in the Shelf Registration. The
Corporation and the Trust will, in the event a Shelf Registration Statement
is declared effective, provide to each Holder a reasonable number of copies
of the Prospectus which is a part of the Shelf Registration Statement and
notify each such Holder when the Shelf Registration has become effective.
The Corporation and the Trust further agree, if necessary, to supplement or
amend the Shelf Registration Statement, if required by the rules, regulations
or instructions applicable to the registration form used by the Corporation
for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the
Corporation and the Trust agree to furnish to the Holders of
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Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) Expenses. The Corporation, as issuer of the Subordinated
Debentures, shall pay all Registration Expenses in connection with any
Registration Statement filed pursuant to Section 2(a) and/or 2(b) hereof and
will reimburse the Initial Purchaser for the reasonable fees and
disbursements of Xxxxxxx, Xxxxxx & Xxxxxxxx, counsel for the Initial
Purchaser, incurred in connection with the Exchange Offer and, if applicable,
the Private Exchange, or any one other counsel designated in writing by the
Majority Holders to act as counsel for the Holders of the Registrable
Securities in connection with a Shelf Registration Statement, which other
counsel shall be reasonably satisfactory to the Corporation. Except as
provided herein, each Holder shall pay all expenses of its counsel and any of
its other advisors or experts, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be deemed to
have become effective unless it has been declared effective by the SEC;
provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to such Exchange Offer
Registration Statement or Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court, such Registration Statement will be
deemed not to have been effective during the period of such interference,
until the offering of Registrable Securities pursuant to such Registration
Statement may legally resume. The Corporation and the Trust will be deemed
not to have used their reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite period if either
of them voluntarily takes any action that would result in any such
Registration Statement not being declared effective or that would result in
the Holders of Registrable Securities covered thereby not being able to
exchange or offer and sell such Registrable Securities during that period
unless such action is required by applicable law.
(e) Liquidated Damages. In the event that:
(i) neither the Exchange Offer Registration Statement is filed
with the SEC on or prior to the 150th day after the Issue Date nor a Shelf
Registration Statement is filed with the SEC on or prior to the 45th day
after the Shelf Registration Event Date in respect of a Shelf Registration
Event attributable to any of the events set forth in Sections 2(b)(i), (ii)
and (iii) (provided that in no event shall such date be earlier than 75 days
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after the Issue Date), then commencing on the day after the applicable
required filing date, liquidated damages ("Liquidated Damages") shall accrue
on the principal amount of the Subordinated Debentures, and additional
distributions ("Additional Distributions") shall accumulate on the
liquidation amount of the Trust Securities (as such term is defined in the
Declaration), each at a rate of .25% per annum; or
(ii) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the SEC on or prior to
the 180th day after the Issue Date (in the case of an Exchange Offer
Registration Statement) or on or prior to the later of (A) the 30th day after
the date such Shelf Registration Statement was required to be filed and (B)
the 180th day after the Issue Date (in the case of a Shelf Registration
Statement, in respect of a Shelf Registration Event attributable to any of
the events set forth in Sections 2(b)(i), (ii) and (iii)), then, commencing
on the 181st day after the Issue Date (in the case of an Exchange Offer
Registration Statement) or the later of (A) the 31st day after the day such
Shelf Registration Statement was required to be filed and (B) the 181st day
after the Issue Date (in the case of a Shelf Registration Statement, in
respect of a Shelf Registration Event attributable to any of the events set
forth in Sections 2(b)(i), (ii) and (iii)), Liquidated Damages shall accrue
on the principal amount of the Subordinated Debentures, and Additional
Distributions shall accumulate on the liquidation amount of the Trust
Securities, each at a rate of .25% per annum;
(iii) (A) the Trust has not exchanged Exchange Capital
Securities or the Corporation has not exchanged Exchange Guarantees or
Exchange Subordinated Debentures for all Capital Securities, Guarantees or
Subordinated Debentures, as the case may be, validly tendered, in accordance
with the terms of the Exchange Offer on or prior to the 45th day after the
date on which the Exchange Offer Registration Statement was declared
effective or (B) if applicable, the Shelf Registration Statement in respect
of a Shelf Registration Event attributable to any of the events set forth in
Sections 2(b)(i), (ii) and (iii) has been declared effective and such Shelf
Registration Statement ceases to be effective or usable for resales (whether
as a result of an event contemplated by Section 3(e) or otherwise) at any
time prior to the expiration of the Rule 144(k) Period (other than after such
time as all Securities have been disposed of thereunder or otherwise cease to
be Registrable Securities), then Liquidated Damages shall accrue on the
principal amount of Subordinated Debentures, and Additional Distributions
shall accumulate on the liquidation amount of the Trust Securities, each at a
rate of .25% per annum commencing on (x) the 46th day after such effective
date, in the case of (A) above, or (y) the day such Shelf Registration
Statement ceases to be effective or usable for resales in the case of (B)
above;
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provided, however, that neither the Liquidated Damages rate on the
Subordinated Debentures, nor the Additional Distribution rate on the
liquidation amount of the Trust Securities, may exceed in the aggregate .25%
per annum; provided, further, however, that (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in
the case of clause (i) above), (2) upon the effectiveness of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case
of clause (ii) above), or (3) upon the exchange of Exchange Capital
Securities, Exchange Guarantees and Exchange Debentures for all Capital
Securities, Guarantees and Subordinated Debentures validly tendered (in the
case of clause (iii)(A) above), or at such time as the Shelf Registration
Statement which had ceased to remain effective or usable for resales again
becomes effective and usable for resales (in the case of clause (iii)(B)
above), Liquidated Damages on the principal amount of the Subordinated
Debentures and Additional Distributions on the liquidation amount of the
Trust Securities as a result of such clause (or the relevant subclause
thereof) shall cease to accrue and accumulate.
Any amounts of Liquidated Damages and Additional Distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above will be payable in cash on
the next succeeding April 1 and October 1, as the case may be, to Holders on
the relevant record dates for the payment of interest and distributions
pursuant to the Indenture and the Declaration, respectively.
(f) Specific Enforcement. Without limiting the remedies available
to the Holders, the Corporation and the Trust acknowledge that any failure by
the Corporation or the Trust to comply with its obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Holders for which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, any Holder may obtain such relief as may be
required to specifically enforce the Corporation's and the Trust's
obligations under Section 2(a) and Section 2(b) hereof.
(g) Distribution of Subordinated Debentures. Notwithstanding any
other provisions of this Agreement, in the event that Subordinated Debentures
are distributed to holders of Capital Securities in liquidation of the Trust
pursuant to the Declaration, (i) all references in this Section 2 and in
Section 3 to Securities, Registrable Securities and Exchange Securities shall
not include the Capital Securities and Capital Securities Guarantee or
Exchange Capital Securities and Exchange Capital Securities Guarantee issued
or to be issued in exchange therefor in the Exchange Offer and (ii) all
requirements for action to be taken by the Trust in this Section 2 and in
Section 3 shall cease to apply and all requirements for action to be taken by
the Corporation in this Section 2 and in Section 3 shall apply to the
Subordinated
14
Debentures and Exchange Debentures issued or to be issued in exchange
therefor in the Exchange Offer.
3. Registration Procedures. In connection with the obligations of
the Corporation and the Trust with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Corporation and the Trust
shall:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Corporation and the Trust, (ii) shall, in the case of a
Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and, in the case of an Exchange
Offer, be available for the exchange of Registrable Securities, and (iii)
shall comply as to form in all material respects with the requirements of
the applicable form and include all financial statements required by the
SEC to be filed therewith; and use its best efforts to cause such
Registration Statement to become effective and remain effective (and, in
the case of a Shelf Registration Statement, usable for resales) in
accordance with Section 2 hereof; provided, however, that if (1) such
filing is pursuant to Section 2(b), or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Corporation and the Trust shall furnish to and afford the
Holders of the Registrable Securities and each such Participating
Broker-Dealer, as the case may be, covered by such Registration
Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed. The Corporation and the Trust
shall not file any Registration Statement or Prospectus or any amendments
or supplements thereto in respect of which the Holders must be afforded
an opportunity to review prior to the filing of such document if the
Majority Holders or such Participating Broker-Dealer, as the case may be,
their counsel or the managing underwriters, if any, shall reasonably
object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented, if so determined by the
Corporation or the Trust or requested by
15
the SEC, by any required prospectus supplement and as so supplemented to
be filed pursuant to Rule 424 (or any similar provision then in force)
under the Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition
of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales by
any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities included in the Shelf Registration Statement, at
least three Business Days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed and
advising such Holder that the distribution of Registrable Securities will
be made in accordance with the method selected by the Majority Holders;
and (ii) furnish to each Holder of Registrable Securities included in the
Shelf Registration Statement and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder
or underwriter may reasonably request, in order to facilitate the public
sale or other disposition of the Registrable Securities; and (iii)
consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities included
in the Shelf Registration Statement in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its reasonable best
efforts to register or qualify the Registrable Securities under all
applicable state securities or "blue sky" laws of such jurisdictions by
the time the applicable Registration Statement is declared effective by
the SEC as any Holder of Registrable Securities covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable
Securities shall reasonably request in writing in advance of such date of
effectiveness, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder and underwriter
to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the
Corporation and the Trust shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
where it
16
would not otherwise be required to qualify but for this Section 3(d),
(ii) file any general consent to service of process in any jurisdiction
where it would not otherwise be subject to such service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not
then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Corporation or the Trust has received prior
written notice that they will be utilizing the Prospectus contained in
the Exchange Offer Registration Statement as provided in Section 3(t)
hereof, are seeking to sell Exchange Securities and are required to
deliver Prospectuses, promptly notify each Holder of Registrable
Securities, or such Participating Broker-Dealers, as the case may be,
their counsel and the managing underwriters, if any, and promptly confirm
such notice in writing (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the qualification of the Registrable Securities
or the Exchange Securities to be offered or sold by any Participating
Broker-Dealer in any jurisdiction described in paragraph 3(d) hereof or
the initiation of any proceedings for that purpose, (iv) in the case of a
Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Corporation and the
Trust contained in any purchase agreement, securities sales agreement or
other similar agreement cease to be true and correct in all material
respects, (v) of the happening of any event or the failure of any event
to occur or the discovery of any facts or otherwise, during the
Effectiveness Period which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which causes such Registration Statement or Prospectus to omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and (vi)
the Corporation and the Trust's reasonable determination that a
post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities included within the coverage of such Shelf
Registration Statement, without charge, one conformed copy of each
Registration Statement relating to such
17
Shelf Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends (other than with respect to
restrictions requiring minimum transfers in blocks having an aggregate
principal or liquidation amount, as the case may be, of $100,000) and in
such denominations (consistent with the provisions of the Indenture and
the Declaration) and registered in such names as the selling Holders or
the underwriters may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Securities pursuant to such
Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its
reasonable best efforts to prepare a supplement or post-effective
amendment to such Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and to notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend use
of the Prospectus until the Corporation has amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) obtain a CUSIP number for all Exchange Capital Securities and
the Capital Securities (and if the Trust has made a distribution of the
Subordinated Debentures to the Holders of the Capital Securities, the
Subordinated Debentures or the Exchange Debentures) as the case may be,
not later than the effective date of a Registration Statement, and
provide the Trustee with printed certificates for the Exchange Securities
or the Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary;
(k) cause the Indenture, the Declaration, the Guarantee and the
Exchange Guarantee to be qualified under the Trust Indenture Act of 1939
(the "TIA") in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be, and effect such
changes to
18
such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and use its best
efforts to cause the relevant trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such documents to be so
qualified in a timely manner;
(l) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions in connection
therewith as are reasonably requested by the holders of at least 25% in
aggregate principal or liquidation amount, as the case may be, of the
Registrable Securities in order to expedite or facilitate the
registration or the disposition of the Registrable Securities;
(m) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration, if requested by (x) the
Initial Purchaser, in the case where such Initial Purchaser holds
Securities acquired by it as part of its initial allotment and (y)
Holders of at least 25% in aggregate principal or liquidation amount, as
the case may be, of the Registrable Securities covered thereby: (i) make
such representations and warranties to Holders of such Registrable
Securities and the underwriters (if any), with respect to the business of
the Trust, the Corporation and its subsidiaries as then conducted and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers of debt securities to underwriters in
underwritten offerings, and confirm the same if and when requested; (ii)
obtain opinions of counsel to the Corporation and the Trust and updates
thereof (which may be in the form of a reliance letter) in form and
substance reasonably satisfactory to the managing underwriters (if any)
and the Holders of a majority in principal amount of the Registrable
Securities being sold, addressed to each selling Holder and the
underwriters (if any) covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as
may be reasonably requested by such underwriters (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions); (iii) obtain "cold comfort" letters and
updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants
of the Corporation and the Trust (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Corporation and the Trust or of any business acquired by the Corporation
and the Trust for which financial statements and financial data are, or
are required
19
to be, included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as reasonably
requested by such underwriters in accordance with Statement on Auditing
Standards No. 72; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 4 hereof (or such other
provisions and procedures acceptable to Holders of a majority in
aggregate principal amount or liquidation amount, as the case may be, of
Registrable Securities covered by such Registration Statement and the
managing underwriters and agents) customary for such agreements with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders).
The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b)
or (2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, make reasonably
available for inspection by any selling Holder of such Registrable
Securities or Participating Broker-Dealer, as applicable, who certifies
to the Corporation and the Trust that it has a current intention to sell
Registrable Securities pursuant to the Shelf Registration, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent retained
by any such selling Holder or each such Participating Broker-Dealer, as
the case may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during the Corporation's normal business
hours, all financial and other records, pertinent corporate documents and
properties of the Trust, the Corporation and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Trust, the Corporation and
its subsidiaries to supply all relevant information in each case
reasonably requested by any such Inspector in connection with such
Registration Statement. Records which the Corporation and the Trust
determine, in good faith, to be confidential and any Records which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or omission in such Registration
Statement, (ii) subject to the lost sentence of this Section 3(n), the
release of such Records is ordered pursuant to a subpoena or other order
from a court of
20
competent jurisdiction or is necessary in connection with any action,
suit or proceeding or (iii) the Information in such Records has been made
generally available to the public (other than by an Inspector or a
selling Holder in breach of its obligations hereunder). Each selling
Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree in writing that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Trust or the Corporation unless and
until such is made generally available to the public through no fault of
an Inspector or a Selling Holder. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to further agree in writing that it will, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction, or in connection with any action, suit or proceeding give
notice to the Corporation and allow the Corporation at its expense to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(o) comply with all applicable rules and regulations of the SEC so
long as any provision of this Agreement shall be applicable and make
generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Corporation after the effective date of a Registration Statement, which
statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer or a Private Exchange,
if requested by a Trustee, obtain an opinion of counsel to the
Corporation addressed to the Trustee for the benefit of all Holders of
Registrable Securities participating in the Exchange Offer or the Private
Exchange, as the case may be, substantially to the effect that (i) the
Corporation and the Trust, as the case requires, has duly authorized,
executed and delivered the Exchange Securities and Private Exchange
Securities, and (ii) each of the Exchange Securities or the Private
Exchange Securities, as the case may be, constitutes a legal, valid and
binding obligation of the Corporation or the Trust, as the case requires,
enforceable against the Corporation or the Trust, as the case requires,
in accordance with its respective terms (in each case, with customary
exceptions);
21
(q) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to
the Corporation or the Trust, as applicable (or to such other Person as
directed by the Corporation or the Trust, respectively), in exchange for
the Exchange Securities or the Private Exchange Securities, as the case
may be, the Corporation or the Trust, as applicable, shall xxxx, or cause
to be marked, on such Registrable Securities delivered by such Holders
that such Registrable Securities are being cancelled in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may
be; in no event shall such Registrable Securities be marked as paid or
otherwise satisfied;
(r) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(s) take all other steps necessary to effect the registration of
the Registrable Securities covered by a Registration Statement
contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement
(i) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," which section shall be reasonably
acceptable to the Initial Purchaser or another representative of the
Participating Broker-Dealers, and which shall contain a summary statement
of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer (a
"Participating Broker-Dealer") that holds Registrable Securities acquired
for its own account as a result of market-making activities or other
trading activities and that will be the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Securities to be received
by such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial
Purchaser or such other representative, represent the prevailing views of
the staff of the SEC, including a statement that any such broker-dealer
who receives Exchange Securities for Registrable Securities pursuant to
the Exchange Offer may be deemed a statutory underwriter and must deliver
a prospectus meeting the requirements of the Securities Act in connection
with any resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Corporation the
notice referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or
22
supplement thereto, as such Participating Broker-Dealer may reasonably
request (each of the Corporation and the Trust hereby consents to the use
of the Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto by any Person subject to
the prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer of
the Exchange Securities covered by the Prospectus or any amendment or
supplement thereto), (iii) use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and
supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of
time as such Persons must comply with such requirements under the
Securities Act and applicable rules and regulations in order to resell
the Exchange Securities; provided, however, that such period shall not be
required to exceed 90 days (or such longer period if extended pursuant to
the last sentence of Section 3 hereof) (the "Applicable Period"), and
(iv) include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Exchange
Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the Securities Act in connection with
any resale of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer
will not be deemed to admit that it is an underwriter within the meaning of
the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Corporation and the Trust agree to deliver to the Initial Purchaser or to
another representative of the Participating Broker-Dealers, if requested
by the Initial Purchaser or such other representative of Participating
Broker-Dealers, on behalf of the Participating Broker-Dealers upon
consummation of the Exchange Offer (i) an opinion of counsel in form and
substance reasonably satisfactory to the Initial Purchaser or such other
representative of the Participating Broker-Dealers, covering the matters
customarily covered in opinions requested in connection with Exchange
23
Offer Registration Statements and such other matters as may be reasonably
requested (it being agreed that the matters to be covered by such opinion
may be subject to customary qualifications and exceptions), (ii) an
officers' certificate containing certifications substantially similar to
those set forth in Section 5(f) of the Purchase Agreement and such
additional certifications as are customarily delivered in a public
offering of debt securities and (iii) as well as upon the effectiveness
of the Exchange Offer Registration Statement, a comfort letter, in each
case, in customary form if permitted by Statement on Auditing Standards
No. 72.
The Corporation or the Trust may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Corporation or the Trust, as applicable, such information regarding such
seller as may be required by the staff of the SEC to be included in a
Registration Statement. The Corporation or the Trust may exclude from such
registration the Registrable Securities of any seller who fails to furnish
such information within a reasonable time after receiving such request. The
Corporation shall have no obligation to register under the Securities Act the
Registrable Securities of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Corporation and the Trust that they will
be utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(t) hereof, are seeking to sell Exchange
Securities and are required to deliver Prospectuses, each Holder agrees that,
upon receipt of any notice from the Corporation or the Trust of the happening
of any event of the kind described in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in writing (the
"Advice") by the Corporation and the Trust that the use of the applicable
Prospectus may be resumed, and, if so directed by the Corporation and the
Trust, such Holder will deliver to the Corporation or the Trust (at the
Corporation's or the Trust's expense, as the case requires) all copies in
such Holder's possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
or Exchange Securities, as the case may be, current at the time of receipt of
such notice. If the Corporation or the Trust shall give any such notice to
suspend the disposition of Registrable Securities or Exchange Securities, as
the case may be, pursuant to a Registration Statement, the Corporation and
the Trust shall use their reasonable best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment or supplement
to the Registration Statement and shall extend the period during which such
Xxxxxxxx-
00
tion Statement is required to be maintained effective and usable for resales
pursuant to this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including the date
when the Corporation and the Trust shall have made available to the Holders
(x) copies of the supplemented or amended Prospectus necessary to resume such
dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Corporation and the Trust shall, jointly and
severally, indemnify and hold harmless the Initial Purchaser, each Holder,
each underwriter who participates in an offering of the Registrable
Securities, each Participating Broker-Dealer, each Person, if any, who
controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of their respective
partners, directors, officers, employees and agents, as follows:
(i) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment thereto), covering
Registrable Securities or Exchange Securities, including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage
and expense whatsoever, joint or several, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the prior written consent
of the Corporation; and
(iii) from and against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by such
Holder, such Participating Broker-Dealer, or any underwriter (except to
the extent otherwise expressly provided in Section 4(c) hereof)),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any
25
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section 4(a);
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished in writing
to the Corporation or the Trust by such Holder, such Participating
Broker-Dealer or any underwriter with respect to such Holder, Participating
Broker-Dealer or any underwriter, as the case may be, expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) and (ii) the Company and the Trust shall not
be liable to any such Holder, Participating Broker-Dealer, any underwriter or
controlling person, with respect to any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary Prospectus to
the extent that any such loss, liability, claim, damage or expense of any
Holder, Participating Broker-Dealer, any underwriter or controlling person
results from the fact that such Holder, any underwriter or Participating
Broker-Dealer sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
final Prospectus as then amended or supplemented if the Corporation had
previously furnished copies thereof to such Holder, underwriter or
Participating Broker-Dealer and the loss, liability, claim, damage or expense
of such Holder, underwriter, Participating Broker-Dealer or controlling
person results from an untrue statement or omission of a material fact
contained in the preliminary Prospectus which was corrected in the final
Prospectus. Any amounts advanced by the Company or the Trust to an
indemnified party pursuant to this Section 4 as a result of such losses shall
be returned to the Corporation or the Trust if it shall be finally determined
by such a court in a judgment not subject to appeal or final review that such
indemnified party was not entitled to indemnification by the Corporation or
the Trust.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Corporation, the Trust, any underwriter and the other
selling Holders and each of their respective directors, officers (including
each officer of the Corporation and the Trust who signed the Registration
Statement), employees and agents and each Person, if any, who controls the
Corporation, the Trust, any underwriter or any other selling Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all loss, liability, claim, damage and expense
whatsoever described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
26
in reliance upon and in conformity with written information furnished to the
Corporation or the Trust by such selling Holder with respect to such Holder
expressly for use in such Registration Statement (or any amendment thereto),
or any such Prospectus (or any amendment or supplement thereto); provided,
however, that in the case of a Shelf Registration Statement, no such Holder
shall be liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it
may have under this Section 4, except to the extent that it is materially
prejudiced by such failure. An indemnifying party may participate at its own
expense in the defense of such action, or, if it so elects within a
reasonable time after receipt of such notice, assume the defense of any suit
brought to enforce any such claim; but if it so elects to assume the defense,
such defense shall be conducted by counsel chosen by it and approved by the
indemnified party or parties which approval shall not be unreasonably
withheld. In the event that an indemnifying party elects to assume the
defense of any such suit and retain such counsel, the indemnified party or
parties shall bear the fees and expenses of any additional counsel thereafter
retained by such indemnified party or parties; provided, however, that the
indemnified party or parties shall have the right to employ counsel (in
addition to local counsel) to represent the indemnified party or parties who
may be subject to liability arising out of any action in respect of which
indemnity may be sought against the indemnifying party if, in the reasonable
judgment of counsel for the indemnified party or parties, there may be legal
defenses available to such indemnified party or parties which are different
from or in addition to those available to the indemnifying party, in which
event the fees and expenses of appropriate separate counsel shall be borne by
the indemnifying party. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to local
counsel), separate from its own counsel, for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 4 (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise
or consent (i) includes an
27
unconditional written release in form and substance satisfactory to the
indemnified parties of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Corporation, the Trust,
and the Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Corporation, the Trust, and the Holders, as
incurred; provided that no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any Person that was not guilty of such fraudulent
misrepresentation. As between the Corporation, the Trust, and the Holders,
such parties shall contribute to such aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
in such proportion as shall be appropriate to reflect the relative fault of
the Corporation and Trust, on the one hand, and the Holders, on the other
hand, with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect thereof, as
well as any other relevant equitable considerations. The relative fault of
the Corporation and the Trust, on the one hand, and of the Holders, on the
other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Corporation or the Trust, on the one hand, or by or on behalf of the
Holders, on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Corporation, the Trust and the Holders of the Registrable Securities
agree that it would not be just and equitable if contribution pursuant to
this Section 4 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 4, each Affiliate of a Holder,
and each director, officer, employee, agent and Person, if any, who controls
a Holder or such Affiliate within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Holder, and each director of each of the Corporation or
the Trust, each officer of each of the Corporation or the Trust who signed
the Registration Statement, and each Person, if any, who controls each of the
Corporation and the Trust within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to
contribution as each of the Corporation or the Trust.
28
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in
the underwriting arrangement approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents reasonably required under the terms of
such underwriting arrangements.
6. Selection of Underwriters. The Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so
may sell the securities covered by such Shelf Registration in an underwritten
offering, subject to the provisions of section 3(l) hereof. In any such
underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount or liquidation amount, as
applicable, of the Registrable Securities included in such offering;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Corporation and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Corporation or the
Trust is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act and any Registrable Securities remain outstanding, each of the
Corporation and the Trust, as the case may be, will file the reports required
to be filed by it under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC thereunder,
provided that if it ceases to be so required to file such reports, it will,
upon the request of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales of its securities
pursuant to Rule 144 under the Securities Act, (b) deliver such information
to a prospective purchaser as is necessary to permit sales of its securities
pursuant to Rule 144A under the Securities Act, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable
Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such rule may be amended from time to time, (ii) Rule 144A under the
Securities Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the request
of any Holder of Registrable Securities, the Corporation and the Trust will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
(b) No Inconsistent Agreements. The Corporation or the Trust has
not entered into, nor will the Corporation or the Trust
29
on or after the date of this Agreement enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the
Corporation's or the Trust's other issued and outstanding securities under
any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Corporation and the Trust has obtained
the written consent of Holders of at least a majority in aggregate principal
amount of the outstanding Registrable Securities affected by such amendment,
modification, supplement, waiver or departure; provided that no amendment,
modification or supplement or waiver or consent to the departure with respect
to the provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing by such
Holder of Registrable Securities. Notwithstanding the foregoing sentence,
(i) this Agreement may be amended, without the consent of any Holder of
Registrable Securities, by written agreement signed by the Corporation, the
Trust and the Initial Purchaser, to cure any ambiguity, correct or supplement
any provision of this Agreement that may be inconsistent with any other
provision of this Agreement or to make any other provisions with respect to
matters or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement, (ii) this Agreement may
be amended, modified or supplemented, and waivers and consents to departures
from the provisions hereof may be given by written agreement signed by the
Corporation, the Trust and the Initial Purchaser to the extent that any such
amendment, modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with applicable law
(including any interpretation of the Staff of the SEC) or any change therein
and (iii) to the extent any provision of this Agreement relates to the
Initial Purchaser, such provision may be amended, modified or supplemented,
and waivers or consents to departures from such provisions may be given, by
written agreement signed by the Initial Purchaser, the Corporation and the
Trust.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Corporation or the Trust by means of a notice given in accordance with
the provisions of this Section 7(d), which address initially is, with respect
to the Initial Purchaser, the address set forth in the Purchase Agreement;
and (ii) if to the Corporation or the Trust, ini-
30
tially at the Corporation's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the Person giving the same to the Trustee, at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchaser, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable
Securities, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and
such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. The Initial Purchaser and any
Participating Broker-Dealer shall be a third party beneficiary of the
agreements made hereunder between the Corporation and the Trust, on the one
hand, and the Holders, on the other hand, and shall have the right to enforce
such agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
MADE IN THE STATE OF NEW YORK. THE VALIDITY AND
31
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH
HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO
CONFLICTS OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE MATTERS
CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL
JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE
COMPANY, ON BEHALF OF ITSELF AND THE SUBSIDIARIES (INCLUDING, WITHOUT
LIMITATION, THE TRUST), IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
32
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
PROGRESS FINANCIAL CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President
and Chief Financial
Officer
PROGRESS CAPITAL TRUST I
By: /s/ W. Xxxx Xxxxxx
-------------------------------------------
Name: W. Xxxx Xxxxxx
Title: Administrative Trustee
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Administrative Trustee
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Administrative Trustee
Confirmed and accepted as of
the date first above
written:
SANDLER X'XXXXX & PARTNERS, L.P.
By: SANDLER X'XXXXX & PARTNERS CORP.,
the sole general partner
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
33
