REGISTRATION RIGHTS AGREEMENT
This AGREEMENT (the "Agreement") is made as of January 31, 1995 by and
among State Street Boston Corporation, a Massachusetts corporation ("State
Street"), Kemper Financial Services, Inc., a Delaware corporation ("Kemper")
and DST Systems, Inc., a Missouri corporation ("DST"). Kemper and DST will be
herein referred to individually as "Holder" and collectively as the "Holders".
WHEREAS, on September 27, 1994 State Street and the Holders entered into
an Acquisition Agreement (the "Acquisition Agreement") whereby State Street
will acquire, from the Holders, all of the issued and outstanding capital stock
of IFTC Holdings, Inc., the sole stockholder of Investors Fiduciary Trust
Company, in exchange for 5,625,000 shares, subject to adjustment, of the Common
Stock, $1.00 par value per share, of State Street, pursuant to the Agreement
(the "State Street Stock").
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Definitions.
(a) "Closing Date" shall mean the closing date specified in the
Acquisition Agreement.
(b) The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement
or similar document in compliance with the Securities Act, and the
automatic effectiveness or the declaration or ordering of effectiveness of
such registration statement or document;
(c) The term "Registrable Securities" means the shares of State
Street Stock issued pursuant to the Acquisition Agreement and held
continuously from the Closing Date by either Kemper or DST, except as
otherwise provided herein.
(d) "Commission" shall mean the Securities and Exchange Commission,
or, if at any time after the execution of this Agreement such Commission
is not existing and performing the duties now assigned to it under the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose, then "Commission" shall mean the body performing
such duties at such time.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, and the rules and regulations promulgated
thereunder, all as the same shall be amended from time to time.
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(f) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules, regulations, and forms promulgated
thereunder, all as the same shall be amended from time to time.
(g) The term "person" shall mean an individual, corporation,
association, partnership, joint venture, trust, unincorporated
organization, government or political subdivision thereof or governmental
agency.
(h) The terms "Form S-1," "Form S-3," "Form S-4" and "Form S-8" mean
such respective forms under the Securities Act as in effect on the date
hereof or any successor registration forms to Form S-1, Form S-3, Form S-4
and Form S-8, respectively, under the Securities Act subsequently adopted
by the Commission.
(i) The term "Affiliate" shall mean any person directly or
indirectly controlling, controlled by or under common control with such
other person.
(j) "Registration Period" shall be the period commencing on the date
hereof and continuing through the fifth anniversary of the Closing Date.
2. Registration Rights
2.1. Shelf Registration. State Street shall file as promptly as
practicable after the date, but in no event later than five business days,
on which State Street files with the Commission consolidated financial
results with IFTC Holdings, Inc. consolidated with Investors Fiduciary
Trust Company covering the period specified by the Commission's Accounting
Series Release No. 135 (January 18, 1973) a registration statement on Form
S-3 (the "Shelf Registration Statement") providing for the sale by the
Holders of the Registrable Securities, pursuant to Rule 415 of the
Commission under the Securities Act, and/or any similar rule that may be
adopted by the Commission, with respect to not more than 50% of the
Registrable Securities. State Street agrees to use its reasonable efforts
to cause the Shelf Registration Statement to be declared effective as
promptly as practicable and to keep such Shelf Registration Statement
continuously effective for a period of 180 days. So long as such Shelf
Registration Statement is effective, any Holder desiring to sell State
Street Stock thereunder shall give notice to State Street by facsimile
transmission to the number and person specified by State Street in writing
to the Holders (or if such information has not been provided, to the
person designated by State Street at the facsimile number set forth in
Section 5.2) on the date of the initiation of the sale of such State
Street Stock.
2.2. Request for Registration.
(a) Until the expiration of the Registration Period, if State Street
shall receive a written request from either of the Holders that State
Street effect the registration under the Securities Act of the Registrable
Securities for which the aggregate offering price is expected to be at
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least fifty million dollars (as determined using the average of the daily
high and low prices for shares of State Street Stock during the thirty
NASDAQ National Market System trading days ending on the fifth business
day prior to the Closing Date), then State Street shall, within five days
of the receipt thereof, give written notice of such request to all Holders
and shall, subject to the limitations of this Section 2.2, use its
reasonable efforts to effect such a registration as soon as practicable
and in any event to use best efforts to file within 75 days of the receipt
of such request a registration statement under the Securities Act covering
all the Registrable Securities which the Holders shall in writing request
(given within 15 days of receipt of the notice given by State Street
pursuant to this Section 2.2(a)) to be included in such registration and
to use its reasonable efforts to have such registration statement become
effective. Kemper and DST shall each be entitled to exercise its right to
demand registration under this Section 2.2(a) on only one occasion.
(b) If the Holder requesting such registration wishes to distribute
the Registrable Securities covered by its request by means of an
underwriting, it shall so advise State Street as part of its request made
pursuant to this Section 2.2 and State Street shall include such
information, and shall designate the managing underwriter or underwriters,
which managing underwriter or underwriters shall be of a national
reputation comparable to or better than Goldman, Sachs & Co., in the
written notice referred to in Section 2.2(a). In such event, the right of
any Holder to include its Registrable Securities in such registration
shall be conditioned upon such Holder's participation in such underwriting
and the inclusion of such Holder's Registrable Securities in the
underwriting. All Holders proposing to distribute their securities
through such underwriting shall, together with State Street as provided in
Section 3.1(g), enter into an underwriting agreement with the managing
underwriter or underwriters selected for such underwriting. In the case of
a registration pursuant to Section 2.2(a), if the managing underwriter
advises the Holders and State Street in writing that marketing factors
require a limitation of the number of shares to be underwritten, then
State Street shall include in such registration (A) first, the Registrable
Securities requested to be registered by the Holder exercising its demand
registration right pursuant to Section 2.2(a); (B) second, the Registrable
Securities requested to be registered by the other Holder pursuant to
Section 2.3 hereof; and (C) third, any other securities requested to be
included in such registration; provided, however, if the limitation on the
number of shares advised by the managing underwriter is not acceptable to
the Holder requesting registration pursuant to Section 2.2 (a), then the
Holder shall have a period of seven business days after such Holder
receives written advice of the limitation to withdraw from such
registration. If the Holder withdraws from such registration within this
time period, such Holder shall be deemed not to have requested
registration pursuant to this Section 2.2.
(c) Notwithstanding the foregoing, (i) State Street shall not be
obligated to effect the filing of a registration statement pursuant to
this Section 2.2 during the 120 days following the effective date of a
registration statement pertaining to the underwritten public offering of
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any State Street common stock (as long as State Street has given any
notice required by Section 2.3 hereof and the Holders are able to include
in such registration at least 50% of the Registrable Securities requested
to be so registered), or (ii) if State Street shall furnish to the Holder
requesting a registration statement pursuant to this Section 2.2 a
certificate signed by the Chairman and Chief Executive Officer of State
Street stating that in the good faith judgment of the Board of Directors
of State Street, it would not be in the best interests of State Street and
its stockholders for such registration statement to be filed, State Street
shall have the right to defer such filing, and no other Holder shall be
entitled to request registration hereunder, for a period of not more than
90 days after receipt of the request of such Holder; provided, however,
that State Street may not utilize the right set forth in this subsection
(c)(ii) more than once in any twelve-month period; provided further, upon
receipt of the certificate described in subsection (ii) of this paragraph
(c), such Holder requesting such registration may withdraw its request
within 10 days of receipt of such certificate and, if such request is so
withdrawn will not count as a request pursuant to this Section 2.2. State
Street shall use its reasonable efforts to keep a registration statement
filed pursuant to this Section 2.2 effective for a period of 90 days. If
State Street utilizes the right set forth in this subsection (c)(ii), the
Registration Period shall be extended for the number of days for which any
filing was deferred as specified in the notice; provided, however, that
the Registration Period may not be extended pursuant to this subsection by
a period of longer than ten months.
(d) Each registration requested pursuant to Section 2.2(a) shall be
effected by the filing of a registration statement on Form S-3 (or if such
form is not available, any other form which includes substantially the
same information as would be required to be included in a registration
statement on such form as currently constituted) unless State Street is
not eligible to use such Form under the Securities Act and the regulations
promulgated thereunder, in which case State Street shall be obligated to
effect such registration on Form S-1.
(e) To the extent that a Holder requests registration pursuant to
Section 2.2(a) and State Street, in lieu of effecting a registration
thereof, acquires a portion, but not all, of the Registrable Securities
requested to be so registered directly from the Holder, then such Holder
shall not be deemed to have exercised its right to request registration
pursuant to Section 2.2(a) of this Agreement.
2.3. State Street Registration. Until the expiration of the
Registration Period, if (but without any obligation to do so) State Street
proposes to register, including for this purpose a registration effected
by State Street for stockholders of State Street other than the Holders,
any of its common stock under the Securities Act in connection with the
public offering of common stock solely for cash (other than a registration
on Form S-8 or any successor form relating solely to the sale of
securities to participants in a State Street stock plan, or a registration
on Form S-4 or any successor form relating to an acquisition by State
Street), State Street shall, at such time, promptly give each Holder
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written notice of such registration. Upon the written request of any
Holder given within 20 days after mailing of such notice by State Street,
State Street shall use its reasonable efforts to cause a registration
statement covering all of the Registrable Securities that each such Holder
has requested to be registered pursuant to this Section 2.3 to become
effective under the Securities Act.
In the case of an underwritten registration pursuant to Section 2.3,
if the managing underwriter advises State Street and the Holders in
writing that marketing factors require a limitation of the number of
shares of State Street stock to be underwritten, then State Street shall
include in such registration (A) first, the shares of State Street stock,
being registered on behalf of State Street or on behalf of the
stockholders (other than the Holders) requesting such registration, as the
case may be, (B) second, the Registrable Securities being registered on
behalf of the Holders apportioned on a pro rata basis among the Holders in
accordance with the number of shares of Registrable Securities requested
by the Holders to be included in such registration; and (C) third, any
other securities to be included in such registration.
2.4. Limitations on Registration. Notwithstanding the provisions of
Sections 2.1, 2.2 and 2.3 hereof, in no event shall State Street be
required to register more than 50% of the amount of Registrable Securities
originally issued on the Closing Date prior to the second anniversary of
the Closing Date.
3. Registration Procedures.
3.1. Registration Procedures Pursuant to Section 2. In connection
with State Street's obligations pursuant to Section 2 hereof, State Street
shall:
(a) prepare and file with the Commission the Shelf Registration
Statement or such other registration statements required under Sections
2.2 and 2.3 (For purposes of this Section 3, the Shelf Registration
Statement and registration statements pursuant to Sections 2.2 and 2.3
will be referred to collectively as the "Registration Statements" and
individually as a "Registration Statement") provided that before filing a
registration statement or prospectus or any amendments or supplements
thereto, State Street will furnish to Holders' counsel copies of all such
documents proposed to be filed but only those portions of such documents
relating to the Holders will be subject to the reasonable review of
Holders' counsel; and State Street shall use its reasonable efforts to
cause such Registration Statements to become effective as soon as
practicable thereafter;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statements or statements hereunder and the
prospectus used in connection therewith as may be necessary to maintain
the effectiveness of the Registration Statements (for the applicable
periods specified in Section 2 hereof), and comply with the provisions of
the Securities Act with respect to the disposition of all of the
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Registrable Securities during such applicable period in accordance with
the intended methods of disposition by the Holders as set forth in the
Registration Statements;
(c) provide the underwriters of the Registrable Securities to be
included in the Registration Statements hereunder, and counsel for such
underwriters, the reasonable opportunity to participate in the preparation
of the Registration Statements, each prospectus included therein or filed
with the Commission, and each amendment or supplement thereto; and,
subject to the execution of confidentiality agreements in a form or forms
reasonably satisfactory to State Street, make available for inspection by
such persons such financial and other information, books and records of
State Street, and cause the officers, directors and employees of State
Street, and counsel and independent certified public accountants of State
Street, to respond to such inquiries, as shall be reasonably necessary, in
the opinion of respective counsel to any such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act;
(d) promptly notify the Holders and the managing underwriters, if
any, of the Registrable Securities being registered and provide copies of
all related documents (i) when a Registration Statement, the prospectus or
any prospectus supplement or any amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of any request by the Commission for
amendments or supplements to a Registration Statement or the prospectus or
for additional or supplemental information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a
Registration Statement or the written threat or initiation of any
proceedings for that purpose, (iv) of the receipt by State Street of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the written threat
or initiation of any proceeding for that purpose or (v) at any time when a
prospectus is required to be delivered under the Securities Act in
connection with any Registration Statement, of (A) the happening of any
event as a result of which such registration statements, prospectus, any
prospectus supplement, or any document incorporated by reference in any of
the foregoing 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 the light of the circumstances
under which they are made or (B) that State Street is in possession of
material information that it deems advisable not to disclose in a
registration statement; provided, that if State Street exercises its
rights under Section 3.2 on the basis of an event described in this
subsection 3.1(d)(v)(B) or an event described in 3.1(d)(iii) or 3.1(d)(iv)
occurs and as a result, the registration of the Registrable Securities or
the distribution of such securities is delayed or discontinued for a
period of longer than 45 days from the date of the exercise of the right
under Section 3.2 or the date of occurrence of an event described in
3.1(d)(iii) or 3.1(d)(iv), then State Street shall have been deemed to
have used its right provided for in Section 2.2(c)(ii) as of such date;
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(e) make reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement or any
post-effective amendment thereto or any state filing made in connection
therewith at the earliest practicable date;
(f) furnish to the Holders and each underwriter, if any, of the
securities being sold such number of copies of the Registration Statement,
each such amendment and supplement thereto (in each case including all
exhibits thereto), the prospectus included in the Registration Statement
and such other documents as the Holders and each underwriter, if any, may
reasonably request in order to facilitate the disposition of the
Registrable Securities being offered;
(g) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in the usual and
customary form for similar transactions, with the managing underwriter or
underwriters of such offering and such other agreements as may be
reasonably requested by the Holders to effect such offering and as are
customary in transactions of this type. Each Holder as a condition to
participating in such underwriting shall also enter into and perform its
obligations under such an agreement as is reasonably satisfactory to the
Holders, including furnishing any opinion of counsel or entering into a
lock-up agreement in the usual or customary form for similar transactions
requested by the managing underwriter or underwriters;
(h) cause all such Registrable Securities to be listed on each
securities exchange on which the State Street Stock is then listed or if
not listed, cause such Registrable Securities to be listed on a national
automated quotation system;
(i) in the underwritten offering obtain from its accountants "cold
comfort letters" dated the effective date of the Registration Statement
and the date of the closing thereunder of the sale of shares addressed to
the underwriters in substance reasonably satisfactory to the managing
underwriter;
(j) obtain from its counsel an opinion addressed to the Holders and
the underwriters reasonably satisfactory to the selling Holders;
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission;
(l) use its best efforts to (i) register or qualify the Registrable
Securities under such other securities laws or Blue Sky laws of such
jurisdictions as the Holders shall reasonably request, (ii) keep such
registrations or qualifications in effect for so long as each of the
Registration Statements remains in effect and (iii) take any and all such
actions as may be reasonably necessary or advisable to enable the Holders
and each underwriter, if any, of Registrable Securities being sold to
consummate the disposition in such jurisdictions of such Registrable
Securities provided, however, that State Street shall not be required for
any such purpose to (A) qualify generally to do business as a foreign
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corporation in any jurisdiction wherein it would not otherwise be required
to qualify or (B) consent to general service of process in any such
jurisdiction; and
(m) cooperate with the Holders and the managing underwriters, if
any, to effect the offering and to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
under the Registration Statements and not bearing any restrictive legends
and such other actions as may be reasonably necessary to complete the
offering.
3.2. Upon the occurrence of any event contemplated by Section
3.1(d)(v)(A), State Street shall, as soon as reasonably practicable, and
in any event within ten business days after such occurrence, prepare and
furnish to each Holder and each underwriter, if any, a reasonable number
of copies of a prospectus supplemented or amended so that, as thereafter
delivered to the purchasers of Registrable Securities, such prospectus
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, in the light of the circumstances under which they
were made, not misleading. The Holders agree that upon receipt of any
notice from State Street of the happening of any event of the kind
described in Section 3.1(d)(v)(A), the Holders shall forthwith discontinue
the disposition of the Registrable Securities and shall use their
reasonable best efforts to cause any underwriter to discontinue such
disposition until each Holder receives copies of such amended or
supplemented Registration Statement or prospectus, and if so directed by
State Street, the Holders shall deliver to State Street all copies, other
than permanent file copies, then in the Holders' possession of the
prospectus covering such Registrable Securities at the time of receipt of
such notice. The Holders agree that upon receipt of any notice from State
Street of the happening of any circumstance described in Section
3.1(d)(v)(B), the Holders shall forthwith discontinue the disposition of
the Registrable Securities and shall use their reasonable best efforts to
cause any underwriter to discontinue such disposition until State Street
notifies the Holders of the ceasing of such circumstances. If the
disposition of the Registrable Securities is discontinued pursuant to this
Section 3.2 for ten days or less, then the period that State Street shall
be required to keep the Registration Statement effective hereunder shall
be extended by 15 days. If the disposition of the Registrable Securities
is discontinued pursuant to this Section 3.2 for greater than 10 days,
then the period that State Street shall be required to keep the
Registration Statement effective hereunder shall be the greater of 30 days
or the number of days equal to the difference between the date the Holders
receive notice pursuant to this Section 3.2 and the date on which the
Holders and the underwriters, if any, receive sufficient number (as
determined by the Holders) of revised prospectuses or prospectus
supplements to continue the offering, if such offering was discontinued by
reason of the happening of an event described in Section 3.1(d)(v)(A) or
the date on which the Holders receive notice of the ceasing of the
circumstances required by this Section 3.2 if such disposition was
discontinued by reason of the happening of an event described in Section
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3.1(d)(v)(B). For purposes of this calculation, the number of days shall
include the day the notice is received by the Holders and the day the
Holders and underwriters receive sufficient prospectus or supplements or
notice of the ceasing of circumstances, as the case may be. If following
the discontinuance of a disposition pursuant to this Section 3.2, State
Street shall terminate or otherwise withdraw the Registration Statement,
then, if registration had been requested by a Holder, such Holder shall
not be deemed to have requested such registration for purposes of this
Agreement, and the Registration Period shall be extended by the number of
days between and including the date on which the disposition was
discontinued and the date on which the Holders receive notice of the
ceasing of the circumstances requiring discontinuance of disposition.
State Street may require each Holder and any underwriter to furnish
to State Street such information regarding the Holders and the
distribution of the Registrable Securities as State Street may from time
to time reasonably request in order to comply with the Securities Act.
The Holders agree to notify State Street as promptly as practicable of any
inaccuracy or change in information previously furnished by them to State
Street or of the happening of any event in either case as a result of
which any prospectus contains an untrue statement of a material fact
regarding the Holders or the distribution of such Registrable Securities
or omits to state any material fact regarding the Holders or the
distribution of such Registrable Securities required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and to furnish
promptly to State Street any additional information required to correct or
update any previously furnished information or required so that such
prospectus shall not contain, with respect to such person 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.
3.3. Stop Transfer Instructions; Legend. The Holders agree and
understand that the issuance of the Registrable Securities to the Holders
has not been, and, except as contemplated in this Agreement, the sale or
other disposition thereof by the Holders will not be, registered under the
Securities Act or the securities laws of any state and that such shares
may be sold or disposed of only in one or more transactions registered
under the Securities Act and, where applicable, such state laws or as to
which an exemption from the registration requirements of the Securities
Act and, where applicable, such state laws is available. The Holders
acknowledge that, except as expressly set forth in this Agreement, the
Holders have no right to require State Street to cause the registration of
any Registrable Securities. The Holders understand and agree that each
certificate representing any Registrable Securities (each, a
"Certificate") shall be subject to stop transfer instructions and shall
bear the following legend:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
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AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD
OR DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND
SUCH STATE LAWS."
State Street hereby agrees that it will, upon the request of the
Holders, eliminate any stop transfer instructions and any restrictive
legend on any certificates representing the Registrable Securities if (i)
in the opinion of counsel, including in-house counsel with demonstrated
expertise in matters relating to federal securities laws, which counsel
and opinion (in form, scope and substance) shall be reasonably
satisfactory to State Street, the Holders are entitled to sell or dispose
of the Registrable Securities represented by such Certificate without
registration or (ii) such shares are being disposed of by the Holders
under a Registration Statement pursuant to Section 2 herein and in
compliance with the Securities Act and applicable state and securities
laws.
3.4. Expenses of Registration. State Street shall bear and pay all
expenses other than underwriting discounts and commissions relating to
Registrable Securities incurred in connection with each registration,
filing or qualification pursuant to Section 2, including (without
limitation) all registration, filing and qualification fees, printing and
accounting fees, fees and expenses of compliance with securities or blue
sky laws, fees and disbursements of counsel for State Street, but State
Street shall not pay the fees and disbursements of counsel and accountants
for the selling Holders.
4. Indemnification.
4.1. Indemnification by State Street. In connection with any
Registration Statement which State Street may file pursuant to this
Agreement, State Street shall, and it hereby agrees to, indemnify and hold
harmless the Holders and each of their directors and officers, and each
other person, if any, which controls any such person within the meaning of
the Securities Act, and each person who participates as an underwriter in
the offering or sale of Registrable Securities, each affiliate, officer,
director or partner of such underwriter, and each other person, if any,
which controls any such underwriter within the meaning of the Securities
Act, from and against any and all losses, claims, damages or liabilities,
joint or several, and expenses (including without limitation any amounts
paid in any settlement effected with the consent of State Street not to be
unreasonably withheld) to which the Holders, underwriter and/or such
director, officer or controlling person thereof may become subject under
the Securities Act, the common law or otherwise, insofar as such losses,
claims, damages or liabilities (or any actions or proceedings, whether
commenced or threatened and whether civil, criminal or administrative, in
respect thereof) or expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement, or any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto or (ii) any
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omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement therein not
misleading, in light of the circumstances in which they were made, and
State Street shall reimburse the Holders and such director, officer or
controlling person thereof; such underwriter, such affiliate, officer,
director or partner of such underwriter, and such controlling person for
any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding; provided, however, that State Street shall not be liable to
any such person in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding, whether commenced or
threatened, in respect thereof) or expense arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any registration statement, or prospectus, or amendment
or supplement thereto, in reliance upon and in conformity with written
information furnished to State Street by such person expressly for use
therein; and provided, further, that State Street shall not be liable to
any such person under the indemnity agreement in this Section 4.1 with
respect to any preliminary prospectus to the extent that any such loss,
claim, damage or liability of such person results from the fact that
Registrable Securities were sold 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
prospectus or of the prospectus as then amended or supplemented.
4.2. Indemnification by the Holders. In connection with any
Registration Statement in which the Registrable Securities held by a
Holder are registered, such Holder shall, and such Holder hereby agrees to
indemnify and hold harmless State Street, each director and officer of
State Street and such other person, if any, who controls State Street
within the meaning of the Securities Act, from and against any and all
losses, claims, damages or liabilities, and expenses (including reasonable
fees of counsel and any amounts paid in settlement effected with the
consent of such holder not to be unreasonably withheld) to which State
Street, such director or officer or controlling person may become subject
under the Securities Act, the common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) or expenses arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact in or omission or alleged omission to state a material fact
required to be stated in any registration statement, or any prospectus
contained therein, or any amendment or supplement thereto, or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to State Street by such Holder expressly for use
therein; provided, that the obligation to indemnify will be several and
not joint as to each Holder and will be limited to the net amount of
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Registration Statement.
4.3. Notices of Claims, Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any
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action or proceeding with respect to which a claim for indemnification may
be made pursuant to this Section 4 or a written threat to commence such
action or proceeding, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice
thereof (including a reasonable explanation of the circumstances in
connection therewith and copies of all writings received relating thereto)
to the latter; provided, however, that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of any obligations under Section 4.1 or 4.2 hereof unless such
failure to provide notice prejudices in any material way the rights of the
indemnifying party to conduct the defense of such action or proceeding.
In case any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after such notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof unless the indemnifying
party has failed to assume the defense of such claim and to employ counsel
reasonably satisfactory to such indemnified person. No indemnifying party
shall consent to entry of any judgment or enter into any settlement with
respect to a claim without the consent of the indemnified party, which
consent shall not be unreasonably withheld, or unless such judgment or
settlement includes as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability in connection with the circumstances out of which the action or
proceeding arose for all persons that may be entitled to or obligated to
provide indemnification or contribution under this Section 4. No
indemnified party shall consent to entry of any judgment or enter into any
settlement of any action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party, which
consent shall not be unreasonably withheld.
4.4. Contribution. If for any reason the indemnification provided
for in Section 4.1 or Section 4.2 is unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, claims,
damages liabilities or expenses specifically covered by the
indemnification provisions set forth in Section 4.1 or Section 4.2, then
the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and the indemnified party, as
well as any other relevant equitable considerations; provided, however,
that the amount for which a Holder which is an indemnifying party shall be
responsible under this Section 4.4 shall be limited to losses, claims,
damages, liabilities or expenses arising out of or based upon any untrue
statement or alleged untrue statement of any material fact in or omission
or alleged omission to state a material fact required to be stated in any
registration statement or any prospectus contained therein, or any
amendment or supplement thereto, or necessary to make the statements
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therein not misleading only to the extent such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to State Street by such
Holder expressly for use therein; provided, further, that the obligation
to contribute will be individual to each Holder and will be limited to the
net amount of proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence
of this paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
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5. Miscellaneous.
5.1. Non-Assignability of Registration Rights. The rights to cause
State Street, or its successors or assigns to register Registrable
Securities pursuant to this Agreement are reserved solely for the use and
benefit of the Holders and may not be assigned or transferred by the
Holders to any other person other than to an Affiliate of such Holders. A
merger or consolidation of or transfer of all or substantially all the
assets of a Holder (a "Fundamental Transaction") shall not be deemed an
assignment for purposes of this Section 5.1 and the Registrable Securities
held by a Holder immediately prior to the consummation of a Fundamental
Transaction shall remain Registrable Securities subsequent to such
Fundamental Transaction.
5.2. 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, by
courier or by telecopy, or three days after being deposited in the mail
(registered or certified mail, postage prepaid, return receipt requested)
as follows:
to State Street at:
State Street Boston Corporation
225 Franklin Street
Boston, Massachusetts 02150-2804
Attn: Robert J. Malley, Esq.
Facsimile No.: (617) 654-4006
with a copy to:
Ropes and Gray
One International Place
Boston, Massachusetts 02110-2624
Attn: Mark V. Nuccio, Esq.
Facsimile No.: (617) 951-7050
to Kemper at:
Kemper Financial Services, Inc.
120 S. LaSalle Street
Chicago, Illinois 60603
Attn: David F. Dierenfeldt, Esq.
Facsimile No.: (312) 499-8335
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with a copy to:
Ballard Spahr Andrews & Ingersoll
1735 Market Street
Philadelphia, Pennsylvania 19103-7599
Attn: William H. Rheiner, Esq.
Facsimile No.: (215) 864-8999
to DST at:
DST Systems, Inc.
1055 Broadway, 9th Floor
Kansas City, Missouri 64105
Attn: Robert Canfield, Esq.
Facsimile No.: (816) 435-8630
with a copy to:
Watson, & Marshall, L. C.
1010 Grand Avenue, 5th Floor
Kansas City, Missouri 64106
Attn: Dennis R. Rilinger, Esq.
Facsimile No.: (816) 842-1247
5.3. Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the parties hereto and any underwriters acting hereunder
and their respective successors.
5.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic substantive laws of The
Commonwealth of Massachusetts without giving effect to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
5.5. Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are for convenience of reference only, and do
not constitute a part of and shall not be deemed to limit or affect in any
way any of the provisions of this Agreement.
5.6. Entire Agreement; Amendments. This Agreement and other
writings 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 Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
This Agreement may be amended and the observance of any term of this
Agreement may be waived only by a written instrument duly executed by
State Street and each of the Holders.
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5.7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.8. Construction of Terms. The singular may include the plural and
vice versa, unless the context clearly indicates to the contrary. The
words "hereof", "herein" and other similar compounds of the word "here"
shall mean and refer to the entire Agreement and not to any particular
Section.
5.9. Severability of Provisions. If any provision of this Agreement
is found to be unenforceable, the other provisions shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
STATE STREET BOSTON CORPORATION
By________________________________
David A. Spina
Vice Chairman
KEMPER FINANCIAL SERVICES, INC.
By________________________________
David F. Dierenfeldt
Senior Vice President
DST SYSTEMS, INC.
By_______________________________
Kenneth V. Hager
Vice President and
Chief Financial Officer
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