EXHIBIT 4.12
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated November 26, 1996, by and
among FBS Capital I, a Delaware business trust (the "Trust"), First Bank System,
Inc., a Delaware corporation registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended ("FBS") and Xxxxxxx, Xxxxx & Co., Xxxxxx
Xxxxxxx & Co. Incorporated, Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, Xxxx Xxxxxxxx Incorporated and Xxxxx Xxxxxxx Inc.
(collectively, the "Purchasers") of the 8.09% Capital Securities of the Trust.
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
(a) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "Debenture Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement in respect of the Debentures dated
November 26, 1996 among FBS, the Trust and the Purchasers.
(c) "Debentures" means the 8.09% Junior Subordinated Deferrable Interest
Debentures due November 15, 2026 of FBS, to be issued pursuant to the Indenture.
(d) "Effective Time", in the case of (i) an Exchange Offer, means the date
on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "Exchange Debentures" has the meaning set forth in Section 2(a)
hereof.
(g) "Exchange Guarantee" has the meaning set forth in Section 2(a) hereof.
(h) "Exchange Offer" has the meaning set forth in Section 2(a) hereof.
(i) "Exchange Securities" has the meaning set forth in Section 2(a)
hereof.
(j) "Guarantee" means the Guarantee of FBS with respect to the Securities,
to the extent set forth in the Guarantee Agreement.
(k) "Guarantee Agreement" means the Guarantee Agreement dated November 26,
1996 between FBS and the Property Trustee for the benefit of the holders of the
Securities.
(l) "Capital Securities Exchange and Registration Rights Agreement" means
the Exchange and Registration Rights Agreement in respect of the Securities
dated November 26, 1996 among FBS, the Trust and the Purchasers.
(m) The term "holder" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
(n) "Indenture" means the Indenture dated as of November 15, 1996, between
FBS and Wilmington Trust Company, as Debenture Trustee, as supplemented by an
officer's certificate dated November 26, 1996, and as further amended or
supplemented from time to time.
(o) "Issue Date" means November 26, 1996.
(p) "Liquidation Amount" means the stated liquidation preference of the
Securities.
(q) "New Guarantee Agreement" has the meaning set forth in Section 2(a)
hereof.
(r) The term "person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(s) "Purchase Agreement" means the Purchase Agreement dated November 19,
1996, among FBS, the Trust and the Purchasers.
(t) "Registrable Securities" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement.
(u) "Registration Expenses" has the meaning set forth in Section 4 hereof.
(v) "Resale Period" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
(w) "Securities" means, collectively, the $300,000,000 aggregate
Liquidation Amount of the 8.09% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold to the Purchasers, and
any securities issued in exchange therefor or in lieu thereof pursuant to the
Trust Agreement.
(x) "Securities Act" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
(y) "Shelf Registration" has the meaning set forth in Section 2(b) hereof.
(z) "Trust Agreement" means the Amended and Restated Trust Agreement dated
as of November 26, 1996 among FBS, as Depositor, Wilmington Trust Company, as
Property Trustee and Delaware Trustee and Administrative Agents named therein.
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(aa) "Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this Exchange
and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. Registration Under the Securities Act.
(a) If FBS and the Trust file a registration statement pursuant to Section
2(a) of the Capital Securities Exchange and Registration Rights Agreement, then
FBS and the Trust agree, jointly and severally, to include in such registration
statement an offer to exchange (the "Exchange Offer") the Guarantee for a new
guarantee of FBS to be extended pursuant to a new guarantee agreement to be
entered into by FBS and the Property Trustee for the benefit of holders of the
Exchange Securities (as defined below), the Registrable Securities, if any, and
the Securities, if any (the "New Guarantee Agreement"), which will be qualified
under the Trust Indenture Act, such new guarantee to be substantially identical
to the Guarantee except that it will relate to the Exchange Securities, the
Registrable Securities, if any, and the Securities, if any, and it will be
registered pursuant to an effective registration statement under the Securities
Act and such new guarantee will not contain provisions restricting transfer in
the absence of registration under the Securities Act (such new guarantee
hereinafter called "Exchange Guarantee"). Such registration statement shall also
relate to, and the consummation of the Exchange Offer shall be conditioned upon
the consummation of, an offer to exchange the Debentures for substantially
identical debentures of FBS pursuant to the Debenture Exchange and Registration
Rights Agreement (the "Exchange Debentures") and to an offer to exchange the
Securities for substantially identical capital securities of the Trust pursuant
to the Capital Securities Exchange and Registration Rights Agreement (the
"Exchange Securities"). FBS and the Trust agree, jointly and severally, to use
their reasonable best efforts to cause such registration statement to become
effective under the Securities Act as soon as practicable thereafter. The
Exchange Offer will be registered under the Act on the appropriate form. The
Exchange Offer shall be deemed to have been completed upon the completion of the
exchange of the Exchange Guarantee for the Guarantee pursuant to the Exchange
Offer.
(b) If FBS and the Trust file a "shelf" registration statement pursuant to
section 2(b) of the Capital Securities Exchange and Registration Rights
Agreement without also filing a registration statement pursuant to Section 2(a)
thereof, then such "shelf" registration statement shall provide for the
registration of the Guarantee (the "Shelf Registration"). The Shelf Registration
shall also provide for the registration of the Debentures pursuant to the
Debenture Exchange and Registration Rights Agreement and for the registration of
and the sale on a continuous or delayed basis by the holders of, all of the
Securities pursuant to Rule 415 under the Securities Act and/or any similar rule
that may be adopted by the Commission pursuant to the Capital Securities
Exchange and Registration Rights Agreement. FBS and the Trust agree, jointly and
severally, to use their reasonable best efforts to cause the Shelf
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Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (A)
the third anniversary of the Issue Date or (B) the later of (i) such time as
there are no longer any Securities outstanding or (ii) as required under the
Debenture Exchange and Registration Rights Agreement. FBS and the Trust further
agree, jointly and severally, to supplement or make amendments to the Shelf
Registration, as and when required by the rules, regulations or instructions
applicable to the registration form used by FBS and the Trust for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration.
(c) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. Registration Procedures.
If FBS and the Trust file a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, FBS shall qualify the Indenture, the New
Guarantee Agreement and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of
a new trustee under any of the Indenture, the New Guarantee Agreement or the
Trust Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of FBS and the
Trust with respect to the registration of the Exchange Securities, the Exchange
Guarantee and the Exchange Debentures, as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, FBS and the Trust shall, as soon as
reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable but no later than 150 days after the Issue Date, a
registration statement with respect to the Exchange Registration
on any form which may be utilized by FBS and the Trust and which
shall permit the Exchange Offer and resales of Exchange
Securities by broker-dealers during the Resale Period to be
effected, and use its reasonable best efforts to cause such
registration statement to become effective as soon as practicable
thereafter;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus included therein as may be necessary
to effect and maintain the effectiveness of such registration
statement for the periods and purposes contemplated hereby and by
the Capital Securities Exchange and
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Registration Rights Agreement and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration
statement, and promptly provide each broker-dealer holding
Exchange Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in conformity
in all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission promulgated thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale
Period, for use in connection with resales of Exchange
Securities;
(iii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in such
registration statement, and confirm such advice in writing, (A)
when such registration statement or the prospectus included
therein or any prospectus amendment or supplement or post
effective amendment has been filed, and, with respect to such
registration statement or any post effective amendment, when the
same has become effective, (B) of the receipt of any comments by
the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration
statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any
time the joint and several representations and warranties of FBS
and the Trust contemplated by Section 5 cease to be true and
correct in all material respects, (E) of the receipt by either
FBS or the Trust of any notification with respect to the
suspension of the qualification of the Exchange Securities and
the Exchange Guarantee for sale in any United States jurisdiction
or the initiation or threatening of any proceeding for such
purpose, or (F) at any time during the Resale Period when a
prospectus is required to be delivered under the Securities Act,
that such registration statement, prospectus, prospectus
amendment or supplement or post effective amendment does not
conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that FBS and the Trust would be
required, pursuant to Section 3(c)(iii)(F) above, to notify any
broker-dealers holding Exchange Securities, without delay prepare
and furnish to each such holder a reasonable number of copies of
a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Securities during the
Resale Period, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and
the Trust
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Indenture Act and the rules and regulations of the Commission
promulgated thereunder and shall not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use their best efforts to obtain the withdrawal of
any order suspending the effectiveness of such registration
statement or any post effective amendment thereto at the earliest
practicable date;
(vi) use their reasonable best efforts to (A) register
or qualify the Exchange Securities and the Exchange Guarantee
under the securities laws or blue sky laws of such jurisdiction
as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations
or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in
such jurisdictions until the expiration of the Resale Period and
(C) take any and all other actions as may be reasonably necessary
or advisable to enable each broker-dealer holding Exchange
Securities to consummate the disposition thereof in such
jurisdictions; provided, however, that neither FBS nor the Trust
shall be required for any such purpose to (1) qualify to do
business in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section
3(g)(vi), (2) consent to general service of process in any such
jurisdiction or (3) in the case of FBS, make any changes to its
charter or by-laws or any agreement between it and its
stockholders or in the case of the Trust, make any changes to the
Trust Agreement;
(vii) use their reasonable best efforts to obtain the
consent or approval of each United States governmental agency or
authority, whether federal, state or local, which may be required
to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers during
the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities,
not later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of
the Commission, and make generally available to all holders of
Securities as soon as practicable but no later than eighteen
months after the Effective Time, an earnings statement of FBS and
its subsidiaries complying with Section 11 (a) of the Securities
Act (including, at the option of FBS, Rule 158 thereunder).
(d) In connection with the joint and several obligations of FBS and the
Trust with respect to the Shelf Registration, if applicable, FBS and the Trust
shall use their reasonable best efforts to cause the Shelf Registration to
become effective to permit the sale of the
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Registrable Securities by the holders thereof in accordance with the intended
method or methods of distribution thereof described in the Shelf Registration.
In connection therewith, FBS and the Trust shall as soon as reasonably possible
(or as otherwise specified):
(i) prepare and file with the Commission, as soon as
practicable, a registration statement with respect to the Shelf
Registration on any form which may be utilized by FBS and the
Trust and which shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods
thereof, as specified in writing to FBS and the Trust by the
holders of the Registrable Securities and use their reasonable
best efforts to cause such registration statement to become
effective as soon as practicable thereafter;
(ii) as soon as practicable, prepare and file with the
Commission such amendments and supplements to such registration
statement and the prospectus included therein as may be necessary
to effect and maintain the effectiveness of such registration
statement for the period specified in Section 2(b) hereof and as
may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such
registration statement and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply with the provisions of the Securities Act
applicable to FBS or the Trust in connection with the disposition
of all of the Registrable Securities covered by such registration
statement in accordance with the intended methods of disposition
by the holders thereof, set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities
to be included in such registration statement and not more than
one counsel for all the holders of such Registrable Securities,
(B) the underwriters (which term, for purposes of this Exchange
and Registration Rights Agreement, shall include a person deemed
to be an underwriter within the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the sales or placement
agent, if any, therefor and (D) one counsel for such underwriters
or agents, if any, reasonable opportunity to participate in the
preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment
or supplement thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in
Section 2(b), make available at reasonable times at FBS's
principal place of business or such other reasonable place for
inspection by the persons referred to in Section 3(d)(iv) who
shall certify to FBS and the Trust that they have a current
intention to sell the Registrable Securities pursuant to the
Shelf Registration such financial and other information and books
and records of FBS and the
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Trust, and cause the officers, employees, counsel and independent
certified public accountants of FBS and the Trust to respond to
such inquiries, as shall be reasonably necessary, in the judgment
of the respective counsel referred to in such Section, to conduct
a reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however, that each such party shall
be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by
FBS as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue
of its inclusion in such registration statement or otherwise,
except by disclosure by such party in breach of this Agreement),
or (B) such person shall be required so to disclose such
information pursuant to the subpoena or order of any court or
other governmental agency or body having jurisdiction over the
matter (subject to, and only to the extent required by, the
requirements of such order, and only after such person shall have
given FBS prompt prior written notice of such requirement);
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and
the managing underwriter or underwriters, if any, thereof and
confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B)
of any comments by the Commission and by the Blue Sky or
securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or
supplements to such registration statement or prospectus or for
additional information, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of such registration
statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the joint and several
representations and warranties of FBS and the Trust contemplated
by Section 3(d)(xv) or Section 5 cease to be true and correct in
all material respects, (E) of the receipt by either FBS or the
Trust of any notification with respect to the suspension of the
qualification of the Registrable Securities and the Guarantee for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time when a prospectus
is required to be delivered under the Securities Act, that such
registration statement, prospectus, prospectus amendment or
supplement or post-effective amendment, or any document
incorporated by reference in any of the foregoing, does not
conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing;
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(vii) use their best efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement or any post-effective amendment thereto at the earliest
practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder or
counsel for the holders of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules
and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies
should be included therein relating to the terms of the sale of
such Registrable Securities, including, without limitation,
information with respect to the Liquidation Amount of Registrable
Securities being sold by any holder or agent or to any
underwriters, the name and description of such holder, agent or
underwriter, the offering price of such Registrable Securities
and any discount, commission or other compensation payable in
respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering
of the Registrable Securities, to be sold by such holder or agent
or to such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(ix) furnish to each holder of Registrable Securities,
each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred
to in Section 3(d)(iv) an executed copy of such registration
statement, each such amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by
reference therein) and such number of copies of such registration
statement (excluding exhibits thereto and documents incorporated
by reference therein unless specifically so requested by such
holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including
each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder, and such other documents, as
such holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder,
offered or sold by such agent or underwritten by such underwriter
and to permit such holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and each
of FBS and the Trust hereby consents to the use of such
prospectus (including such preliminary and summary prospectus)
and any amendment or supplement thereto by each such holder and
by any such agent and underwriter, in each case in the form most
recently provided to such party by FBS and the Trust, in
connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such
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preliminary and summary prospectus) or any supplement or
amendment thereto;
(x) use their reasonable best efforts to (A) register
or qualify the Registrable Securities to be included in such
registration statement and the Guarantee under such securities
laws or blue sky laws of such jurisdictions as any holder of such
Registrable Securities and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably
request, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of
offers, sales and dealings therein in such jurisdictions during
the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to
enable any such holder, agent or underwriter to complete its
distribution of Securities pursuant to such registration
statement and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such holder,
agent, if any, and underwriter, if any, to consummate the
disposition in such jurisdictions of Registrable Securities;
provided, however, that neither FBS nor the Trust shall be
required for any such purpose to (1) qualify to do business in
any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(x), (2)
consent to general service of process in any such jurisdiction,
(3) in the case of FBS, make any changes to its charter or by-
laws or any agreement between it and its shareholders or in the
case of the Trust, make any changes to the Trust Agreement;
(xi) use their reasonable best efforts to obtain the
consent or approval of each governmental agency or authority,
whether federal, state or local, which may be required to effect
the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable
Securities and the managing underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall be
printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive
legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request
at least two business days prior to any sale of the Registrable
Securities;
(xiii) provide a CUSIP number for all Registrable
Securities, not later than the applicable Effective Time;
(xiv) enter into not more than one underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement
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or similar agreement, as appropriate, including (without
limitation) provisions relating to indemnification and
contribution substantially the same as those set forth in Section
6 hereof, and take such other actions in connection therewith as
any holders of Registrable Securities aggregating at least 25% in
aggregate Liquidation Amount of the Registrable Securities at the
time outstanding shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
provided, that FBS and the Trust shall not be required to (i)
enter into any such agreement more than once with respect to all
of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public
offering which FBS and the Trust shall have then undertaken or
(ii) enter into any engagement letter, agency agreement, "best
effort" underwriting agreement or similar agreements whatsoever
with respect to the Registrable Securities, and provided, further
that FBS and the Trust shall not be obligated to enter into any
such agreement with a broker-dealer which results in the need for
a "qualified independent underwriter" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD") or any successor
thereto, as amended from time to time (the "Rules and By-Laws of
NASD"));
(xv) whether or not an agreement of the type referred to
in Section (3)(d)(xiv) hereof is entered into and whether or not
any portion of the offering contemplated by such registration
statement is an underwritten offering or is made through a
placement or sales agent or any other entity, (A) make such
representations and warranties to the holders of such Registrable
Securities and the placement or sales agent, if any, therefor and
the underwriters, if any, thereof substantially the same as those
set forth in Section V of the Purchase Agreement and such other
representations and warranties as are customarily made with
respect to the offering of debt securities pursuant to any
appropriate agreement or to a registration statement on the
applicable form under the Securities Act; (B) obtain an opinion
or opinions of counsel to FBS and the Trust substantially the
same as the opinions provided for in Section IV of the Purchase
Agreement with such additions, substitutions or deletions of such
matters as are customarily covered in opinions for an
underwritten offering, addressed to such holder or holders and
the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of
such registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that
the matters to be covered by such opinion shall also include,
without limitation, the absence of governmental approvals
required to be obtained in connection with the Shelf
Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or
any agreement of the type referred to in Section (3)(c)(xiv)
hereof, except such approvals as may be required under state
securities or blue sky laws; and the compliance as to form of
such registration statement and any
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documents incorporated by reference therein and of the Indenture,
the Guarantee Agreement and the Trust Agreement with the
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated
thereunder, respectively); and, such opinion shall also state
that such counsel has no reason to believe that, as of the date
of the opinion and of the registration statement or most recent
post-effective amendment thereto, as the case may be, such
registration statement and the prospectus included therein, as
then amended or supplemented, and the documents incorporated by
reference therein (in each case other than the financial
statements and other financial information contained therein)
contains or contained an untrue statement of a material fact or
omits or omitted to state therein a material fact necessary to
make the statements therein not misleading (in the case of such
documents, in the light of the circumstances existing at the time
that such documents were filed with the Commission under the
Exchange Act)); (C) obtain a "cold comfort" letter or letters
from the independent certified public accountants of FBS and the
Trust addressed to the selling holders of Registrable Securities,
the placement or sales agent, if any, therefor and the
underwriters, if any, thereof, dated (i) the effective date of
such registration statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such
registration statement or post-effective amendment to such
registration statement substantially in the form of Exhibit F to
the Purchase Agreement; (D) deliver such other documents and
certificates, including officers' certificates, as may be
reasonably requested by any holders of at least 25 % in aggregate
Liquidation Amount of the Registrable Securities at the time
outstanding or the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof to evidence the
accuracy of the representations and warranties made pursuant to
clause (A) above or those contained in Section 5(a) hereof and
the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other
agreement entered into by FBS and the Trust; and (E) undertake
such obligations relating to expense reimbursement,
indemnification and contribution as are provided in Section 6
hereof;
(xvi) notify in writing each holder of Registrable
Securities of any proposal by FBS and the Trust to amend or waive
any provision of this Exchange and Registration Rights Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain
the text of the amendment or waiver proposed or effected, as the
case may be;
(xvii) in the event that any broker-dealer registered under
the Exchange Act shall underwrite any Registrable Securities or
participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the
Rules and By-Laws of NASD) thereof, whether as a holder of such
Registrable Securities or as an
12
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules and By-Laws,
including, without limitation, by (A) if such Rules or By-Laws,
including Schedule E thereto (or any successor thereto), shall so
require, engaging a "qualified independent underwriter" (as
defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement
relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section
6 hereof (or to such other customary extent as may be required by
such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules and By-Laws of NASD;
and
(xviii) comply with all applicable rules and regulations of
the Commission, and make generally available to its holders of
the Securities as soon as practicable but in any event not later
than eighteen months after the effective date of such
registration statement, an earnings statement of FBS and its
subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of FBS, Rule 158 thereunder).
(e) In the event that FBS and the Trust would be required, pursuant to
Section 3(d)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, FBS and the Trust shall without delay prepare and
furnish to each such holder, to each placement or sales agent, if any, and to
each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder and shall
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. Each holder of
Registrable Securities agrees that upon receipt of any notice from FBS and the
Trust pursuant to Section 3(d)(vi)(F) hereof, such holder shall forthwith
discontinue the disposition of Registrable Securities, pursuant to the
registration statement applicable to such Registrable Securities until such
holder shall have received copies of such amended or supplemented prospectus,
and if so directed by FBS and the Trust, such holder shall deliver to FBS (at
FBS's expense) all copies, other than permanent file copies, then in such
holder's possession of the prospectus covering such Registrable Securities at
the time of receipt of such notice.
(f) FBS and the Trust may require each holder of Registrable Securities as
to which any registration is being effected to furnish in writing to FBS and the
Trust such information
13
regarding such holder and such holder's intended method of distribution of such
Registrable Securities as FBS and the Trust may from time to time reasonably
request in writing, but only to the extent that such information is required in
order to comply with the Securities Act. Each such holder agrees to notify FBS
and the Trust as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to FBS and the Trust or of the
occurrence of any event in either case as a result of which any prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities or omits to state any material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly to furnish to FBS and the Trust any additional information required
to correct and update any previously furnished information or required so that
such prospectus shall not contain, with respect to such holder or the
distribution of such Registrable Securities, an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances then
existing. Each such holder shall comply with the provisions of the Securities
Act applicable to such holder with respect to the disposition by such holder of
Registrable Securities covered by such registration statement in accordance with
the intended methods of disposition by such holder set forth in such
registration statement.
(g) Until the expiration three years after the Issue Date, FBS will not,
and will not permit any of its "affiliates" (as defined in Rule 144 under the
Act) to, resell any of the Securities which constitute "restricted securities"
under Rule 144 that have been reacquired by any of them except pursuant to an
effective registration statement under the Act or any exemption therefrom;
provided, however, that, for purposes of this paragraph, "affiliates" shall not
include the Purchasers or any of their affiliates other than FBS and its
subsidiaries, officers, managers and directors.
4. Registration Expenses.
If FBS and the Trust file a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
FBS agrees to bear and to pay or cause to be paid promptly upon request
being made therefor all expenses incident to the performance by FBS and the
Trust or compliance with this Exchange and Registration Rights Agreement,
including, without limitation, (a) all Commission and any NASD registration and
filing fees and expenses, (b) all fees and expenses in connection with the
qualification of the Securities and the Guarantee for offering and sale under
the state securities and blue sky laws referred to in Section 3(d)(x) hereof,
including reasonable fees and disbursements of counsel in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, and the
certificates representing the Securities and all documents relating hereto, (d)
messenger and delivery expenses, (e) fees and expenses of the Debenture Trustee
under the Indenture, the Issuer Trustees under the Trust Agreement and the
Guarantee
14
Trustee under the Guarantee Agreement and of any escrow agent or custodian, (f)
internal expenses (including, without limitation, all salaries and expenses of
FBS's officers and employees performing legal or accounting duties), (g) fees,
disbursements and expenses of counsel and independent certified public
accountants of FBS and the Trust (including the expenses of any opinions or
"cold comfort" letters required by or incident to such performance and
compliance), (h) fees, disbursements and expenses of any "qualified independent
underwriter" engaged pursuant to Section 3(d)(xvii) hereof, (i) fees,
disbursements and expenses of one counsel for the holders of Registrable
Securities retained in connection with a Shelf Registration, as selected by the
holders of at least a majority in aggregate Liquidation Amount of the
Registrable Securities being registered, and fees, expenses and disbursements of
any other persons, including special experts, retained by FBS or the Trust in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, FBS shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
written request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency or brokerage fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above,
transfer taxes on resale of any of the Securities by such holders and any
advertising or solicitation expenses other than expenses specifically referred
to above incurred by or on behalf of such holders in connection with any offers
they may make.
5. Representations and Warranties.
FBS and the Trust, jointly and severally, represent and warrant to, and
agree with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures or the Registrable Securities,
the Guarantee and the Debentures, as the case may be, and each prospectus
(including any preliminary or summary prospectus) contained therein or furnished
pursuant to Section 3(d)(ix) hereof and any further amendments or supplements to
any such registration statement or prospectus, when it becomes effective or is
filed with the Commission, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the closing
under the underwriting agreement relating thereto, will conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act, the rules and regulations of the Commission promulgated
thereunder and any such registration statement and any amendment thereto will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and any such prospectus or any amendment or supplement thereto
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing; and at all
times subsequent to the Effective Time of any such registration statement when a
prospectus would be required to be delivered under the
15
Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(c)(iii)(F) or Section
3(d)(vi)(F) hereof until (ii) such time as FBS and the Trust furnish an amended
or supplemented prospectus pursuant to Section 3(c)(iv) or Section 3(e) hereof,
as the case may be, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant to
Section 3(c) or Section 3(d)(ix) hereof, as then amended or supplemented, will
conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to FBS and the Trust by
a holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to FBS and the Trust by a holder of
Registrable Securities expressly for use therein.
(c) The representations and warranties of the Trust and FBS contained in
Section V of the Purchase Agreement are true and correct with the same force and
effect as though expressly made at and as of the date hereof.
6. Indemnification.
(a) Upon the registration of the Exchange Guarantee or the Guarantee, as
the case may be, pursuant to Section 2 hereof, and in consideration of the
agreements of the Purchasers contained herein, and as an inducement to the
Purchasers to purchase the Securities, the Trust and FBS, jointly and severally,
agree to indemnify and hold harmless, each of the holders of Registrable
Securities to which the Exchange Guarantee or the Guarantee relates, and each
person who participates as a placement or sales agent or as an underwriter in
any offering or sale of such Registrable Securities and each person, if any, who
controls, such holder, or such placement or sales agent, if any, or such
underwriter, if any, within the meaning of Section 15 of the Act or Section 20
of the Exchange Act (each an "Indemnified Person") as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in any registration
statement under which the
16
Exchange Guarantee or the Guarantee were registered under the
Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or FBS to any such holder,
agent or underwriter (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in such registration statement
or such preliminary, final or summary prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission was made in reliance upon and
in conformity with written information relating to such Indemnified
Person furnished to the Trust and FBS by, or on behalf of, such
Indemnified Person expressly for use in such registration statement or
such preliminary, final or summary prospectus (or any amendment or
supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission (except as made in reliance
upon and in conformity with information relating to such Indemnified
Person furnished by, or on behalf of, such Indemnified Person as
aforesaid), if such settlement is effected with the written consent of
the Trust and FBS; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person),
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in
conformity with information relating to such Indemnified Person
furnished by, or on behalf of, such Indemnified Person as aforesaid)
to the extent that any such expense is not paid under (i) or (ii)
above.
provided, however, that indemnification with respect to any prospectus shall not
inure to the benefit of any holder of Registrable Securities or Exchange
Securities from whom the Person asserting any loss, claim, liability, damage or
expense purchased such Securities, if a copy of the Prospectus (as then amended
or supplemented and furnished by FBS to such holder) was not sent or given by or
on behalf of such holder to such person if such is required by law at or prior
to the sale of such Registrable Securities or Exchange Securities, as the case
may be, and if the prospectus (as so amended and supplemented) would have cured
the defect giving rise to such loss, claim, liability, damage or expense.
17
(b) FBS may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2 hereof and
to entering into any placement or underwriting agreement with respect thereto,
that FBS shall have received an undertaking reasonably satisfactory to them from
the holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and FBS and
each person, if any, who controls the Trust or FBS within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in any registration
statement under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or FBS to any such holder, agent or
underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
FBS by or on behalf of such holder, or such placement or sales agent, if any, or
such underwriter, if any, expressly for use in such registration statement or
such preliminary, final or summary prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
In order to provide for just and equitable contribution in circumstances in
which the indemnity agreement provided for in this Section 6 is for any reason
held to be unavailable to such holders, such placement or sales agents, if any,
or such underwriters, if any, in accordance with its terms, the Trust, FBS and
such holders, such placement and sales agents, if any, and such underwriters, if
any, shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement
18
incurred by the Trust, FBS and such holders, such placement and sales agents, if
any, and such underwriters, if any, in such proportions as is appropriate to
reflect the relative benefits received by the Trust and FBS on the one hand and
such holders, such placement and sales agents, if any, and such underwriters, if
any, on the other. The relative benefits received by the Trust and FBS on the
one hand and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other shall be deemed to be in such proportion
represented by the percentage that the total commissions and underwriting
discounts received by such holders, such placement and sales agents, if any, and
such underwriters, if any, to the date of such liability bears to the total
sales price (before deducting expenses) received by the Trust and such holders,
such placement and sales agents, if any, and such underwriters, if any, from the
sale of such Securities made to the date of such liability, and the Trust and
FBS are jointly and severally responsible for the balance. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if such holders, such placement and sales agents, if any, and
such underwriters, if any, failed to give the notice required under this
subsection (c), then the Trust, FBS and such holders, such placement and sales
agents, if any, and such underwriters, if any, shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Trust and FBS on the one hand and such holders, such
placement and sales agents, if any, and such underwriters, if any, on the other
in connection with the statements or omissions which resulted in such
liabilities, claims, damages and expenses, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Trust and FBS on the one hand or is
supplied by, or on behalf of, such holders, such placement or sales agents, if
any, and such underwriters, if any, on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust, FBS and such holders, such placement or
sales agents, if any, and such underwriters, if any, agree that it would not be
just and equitable if contributions pursuant to this paragraph were determined
pro rata (even if such holders, such placement or sales agents, if any, and such
underwriters, if any, were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in this paragraph. Notwithstanding the provisions of
this paragraph, such holders, such placement or sales agents, if any, and such
underwriters, if any, shall not be required to contribute any amount in excess
of the amount by which the total price at which the Securities referred to in
the second sentence of this paragraph that were offered and sold to the public
through such holders, such placement or sales agents, if any, and such
underwriters, if any, exceeds the amount of any damages that such holders, such
placement or sales agents, if any, and such underwriters, if any, have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
under this paragraph to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls any such holders, such placement or sales agents, if any, and such
underwriters, if any, within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such holders, such placement or sales agents, if any, and such underwriters, if
any, and each person, if any,
19
who controls the Trust or FBS within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as the Trust or FBS.
7. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Trust and FBS represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to the Guarantee or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement and that the Debenture Exchange and Registration Rights
Agreement and the Capital Securities Exchange and Registration Rights Agreement
should be construed to be consistent with the terms hereof.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows, if to FBS or the Trust,
to: First Bank System, Inc., First Bank Place, 000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, and if to a holder, to the address of such holder
set forth in the security register or other records of the Trust, or to such
other address as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange and
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the respective successors and assigns of the
parties hereto. In the event that any transferee of any holder of Registrable
Securities shall become a holder of Registrable Securities, in any manner,
whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Exchange and
Registration Rights Agreement. If FBS shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
20
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer. In addition, the
respective indemnities, representations and warranties set forth herein shall
survive the termination hereof.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by FBS, the Trust, and
the holders of at least 66-2/3 percent in aggregate principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 7(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of FBS at
the address thereof set forth in Section 9(c) above.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
21
(k) Termination. Except for the respective indemnities, representations
and warranties set forth herein, this Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
22
This Agreement is hereby executed as of the day and year first above written.
FIRST BANK SYSTEM, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FBS CAPITAL I
By: /s/ Xxx X. Mitau
---------------------------------------
Administrative Agent
XXXXXXX, SACHS & CO.
As Representative of the Purchasers
Named in Schedule 1 to the Purchase
Agreement
By: /s/ Xxxxxxx, Xxxxx & Co.
--------------------------------------
(Xxxxxxx, Sachs & Co.)
Acting severally, and not jointly and
severally, on behalf of themselves and
each of the Purchasers named in Schedule
I to the Purchase Agreement
