EXHIBIT 4.4
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of January 31, 1997
Among
OLD KENT CAPITAL TRUST I
and
LEHMAN BROTHERS INC.
as Initial Purchaser
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Securities Subject to This Agreement. . . . . . . . . . . . . . . . 3
3. Registered Exchange Offer . . . . . . . . . . . . . . . . . . . . . 3
4. Shelf Registration. . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Additional Interest and Additional Distributions Under Certain
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . 7
7. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . 14
8. Indemnification and Contribution. . . . . . . . . . . . . . . . . . 15
9. Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
10. Participation in Underwritten Registrations . . . . . . . . . . . . 18
11. Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . 18
12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
This Registration Rights Agreement (this "Agreement") is made and
entered into as of January 31, 1997 by and among Old Kent Capital Trust I,
a Delaware statutory business trust (the "Trust"), Old Kent Financial
Corporation, a Michigan corporation ("the Company") and Lehman Brothers
Inc. (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of January 31, 1997, among the Company, the Trust and
the Initial Purchaser (the "Purchase Agreement"), and any additional
purchase agreement between such parties, in each case which provides for
the sale by the Trust to the Initial Purchaser of the Trust's Floating Rate
Subordinated Capital Income Securities, liquidation amount $1,000 per
security (the "Capital Securities"). The Company will be the owner of all
of the beneficial ownership interest represented by the common securities
(the "Common Securities") of the Trust. The Capital Securities and the
Common Securities will be guaranteed by a guarantee (the "Guarantee") by
the Company, to the extent of funds held by the Trust. Concurrently with
the issuance of the Capital Securities, the Guarantee and the Common
Securities, the Trust will invest the proceeds of each thereof in the
Company's Floating Rate Junior Subordinated Debentures due 2027 (the
"Junior Subordinated Debentures" and, together with the Capital Securities
and the Guarantee, the "Securities"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Trust and the Company
have agreed to provide the registration rights set forth in this Agreement
for the benefit of the Initial Purchaser and its direct and indirect
transferees and assigns. The execution and delivery of this Agreement is a
condition to the Initial Purchaser's obligations to purchase the Capital
Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
ADDITIONAL INTEREST: as defined in Section 5(a) hereof.
ADDITIONAL DISTRIBUTIONS: as defined in Section 5(a)
hereof.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
CLOSING DATE: The date on which the Securities were sold.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of
(i) the filing and effectiveness under the Securities Act of the
2
Exchange Offer Registration Statement relating to the New Securities
to be issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by
the Company and the Trust of the New Securities in the same aggregate
principal amount as the aggregate principal amount of Transfer
Restricted Securities that were tendered by Holders thereof pursuant
to the Exchange Offer.
DECLARATION: The Amended and Restated Declaration of Trust,
dated as of January 31, 1997, among Bankers Trust Company, as Property
Trustee, Bankers Trust Company (Delaware), as Delaware Trustee, and
the Regular Trustees named therein, pursuant to which the Capital
Securities are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
DISTRIBUTION: As defined in the Declaration.
EFFECTIVENESS TARGET DATE: As defined in Section 5.
EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended.
EXCHANGE OFFER: The registration by the Company and the
Trust under the Securities Act of the New Securities pursuant to a
Registration Statement pursuant to which the Company and the Trust
offer the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for New Securities in an aggregate
amount equal to the aggregate amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement relating to the Exchange Offer, including the Prospectus
which forms a part thereof.
EXEMPT RESALES: The transactions in which the Initial
Purchaser propose to sell the Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act and to certain non-"U.S. persons" in "offshore
transactions," as such terms are defined in Regulation S under the
Securities Act.
GUARANTEE AGREEMENT: The Guarantee Agreement, dated as of
January 31, 1997, between the Company and Bankers Trust Company, as
Guarantee Trustee, pursuant to which the Guarantee is being issued, as
3
amended or supplemented from time to time in accordance with the terms
thereof.
HOLDERS: As defined in Section 2(b) hereof.
INDENTURE: The Indenture, dated as of January 31, 1997,
between the Company and Bankers Trust Company, as trustee (the
"Trustee"), pursuant to which the Junior Subordinated Debentures are
to be issued, as such Indenture is amended or supplemented from time
to time in accordance with the terms thereof.
INITIAL PURCHASER: As defined in the preamble hereto.
NASD: National Association of Securities Dealers, Inc.
NEW JUNIOR SUBORDINATED DEBENTURES: The Company's Junior
Subordinated Debentures to be issued pursuant to the Indenture in the
Exchange Offer.
NEW SECURITIES: The Securities to be issued pursuant to the
Indenture, the Declaration and the Guarantee Agreement in the Exchange
Offer.
PERSON: An individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company and the Trust relating to (i) an offering of New Securities
pursuant to an Exchange Offer or (ii) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this
Agreement, in either case, including the Prospectus included therein,
all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
SECURITIES ACT: The Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
4
SHELF REGISTRATION STATEMENT: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939, as amended.
TRANSFER RESTRICTED SECURITIES: Each Security, until the
earliest to occur of (i) the date on which such Security has been
exchanged by a person other than a Broker-Dealer for New Securities in
the Exchange Offer, (ii) following the exchange by a Broker-Dealer in
the Exchange Offer of such Security for one or more New Securities,
the date on which such New Securities are sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale
a copy of the prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with
the Shelf Registration Statement or (iv) the date on which such
Security is distributed to the public pursuant to Rule 144 under the
Securities Act;
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A
registration in which securities of the Company and the Trust are sold
to an underwriter for reoffering to the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) TRANSFER RESTRICTED SECURITIES. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person beneficially owns Transfer Restricted
Securities.
3. REGISTERED EXCHANGE OFFER.
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures set
forth in Section 6(a) below have been complied with), the Company and
the Trust shall (i) cause to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 150
days after the Closing Date, a Registration Statement under the
Securities Act relating to the New Securities and the Exchange Offer,
(ii) use their respective best efforts to cause such Registration
Statement to become effective at the earliest possible time, but in no
event later than 180 days after the Closing Date, (iii) in connection
with the foregoing, file (A) all pre-effective amendments to such
5
Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to
Rule 430A under the Securities Act and (C) cause all necessary filings
in connection with the registration and qualification of the New
Securities to be made under the Blue Sky laws of such jurisdictions in
the United States as are necessary to permit Consummation of the
Exchange Offer, and (iv) unless the Exchange Offer would not be
permitted by applicable law or Commission policy, the Company will
commence the Exchange Offer and use its best efforts to issue on or
prior to 30 business days after the date on which such Registration
Statement was declared effective by the Commission, New Securities in
exchange for all Securities tendered prior thereto in the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the New Securities to be offered in exchange for the
Transfer Restricted Securities and to permit resales of New Securities
held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Trust shall use their best efforts
to cause the Exchange Offer Registration Statement to be effective
continuously and keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; PROVIDED, HOWEVER,
that in no event shall such period be less than 20 business days. The
Company and the Trust shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities other
than the New Securities shall be included in the Exchange Offer
Registration Statement. The Company and the Trust shall use its best
efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 business days
thereafter.
(c) The Company and the Trust shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in the
Exchange Offer Registration Statement that any Broker-Dealer who holds
Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making activities
or other trading activities (other than Transfer Restricted Securities
acquired directly from the Company and the Trust), may exchange such
Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of
the New Securities received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the
6
Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of Distribution"
shall not name any such Broker-Dealer or disclose the amount of New
Securities held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy announced
after the date of this Agreement.
The Company and the Trust shall use their respective best efforts
to keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c)
below to the extent necessary to ensure that it is available for resales of
New Securities acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of 180 days from the date on
which the Exchange Offer Registration Statement is declared effective.
The Company and the Trust shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request
at any time during such 180-day period in order to facilitate such resales.
4. SHELF REGISTRATION.
(a) SHELF REGISTRATION. If (i) the Company and the Trust
are not required to file an Exchange Offer Registration Statement or
to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), (ii) the
Company has received an opinion of counsel, rendered by a law firm
having a nationally recognized tax practice, to the effect that, as a
result of the consummation of the Exchange Offer there is more than an
insubstantial risk that (A) the Trust would be subject to United
States federal income tax with respect to income received or accrued
on the Junior Subordinated Debentures or New Junior Subordinated
Debentures, (B) interest payable by the Company on such Junior
Subordinated Debentures or New Junior Subordinated Debentures would
not be deductible by the Company, in whole or in part, for United
States federal income tax purposes or (C) the Trust would be subject
to more than a de minimis amount of other taxes, duties or other
governmental charges or (iii) if any Holder of Transfer Restricted
Securities that is a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) (A) is prohibited as a result of
change in applicable law or Commission policy from participating in
the Exchange Offer, or (B) may not resell the New Securities acquired
7
by it in the Exchange Offer to the public without delivering a
prospectus and, as a result of a change in law or Commission policy,
the Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder or (C)
is a Broker-Dealer and holds Securities acquired directly from the
Trust or one of its affiliates, and such holder notifies the Company
and the Trust on or before 20th business day following the
Consummation of the Exchange Offer of such holder's exercise of such
right, then the Trust and the Company shall use their respective best
efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act,
which may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earliest to occur of (1) the
150th day after the date on which the Trust and the Company
determines that they are not required to file the Exchange
Offer Registration Statement or (2) the 150th day after the
date on which the Trust and the Company receive notice from
a Holder of Transfer Restricted Securities as contemplated
by clause (iii) above (such earliest date being the "Shelf
Filing Deadline"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities
the Holders of which shall have provided the information
required pursuant to Section 4(b) hereof PROVIDED that, in
the event of a Shelf Registration due solely to notice
provided by a Holder of Transfer Restricted Securities in
accordance with clause (iii) above, the Shelf Registration
shall cover only resales of Transfer Restricted Securities
by all such Holders; and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or before the 180th
day after the Shelf Filing Deadline.
The Trust and the Company shall use their respective best efforts to
keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Sections
6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Securities by the Holders of Transfer
Restricted Securities entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period ending
on the third anniversary of the Closing Date.
8
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN
CONNECTION WITH THE SHELF REGISTRATION STATEMENT. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Trust and
the Company in writing, within 20 business days after receipt of a
request therefor, such information as the Trust and the Company may
reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to
Additional Distributions pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such
reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to
the Trust and the Company all information required to be disclosed in
order to make the information previously furnished to the Trust and
the Company by such Holder not materially misleading.
5. ADDITIONAL INTEREST AND ADDITIONAL DISTRIBUTIONS UNDER
CERTAIN CIRCUMSTANCES.
(a) If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date
specified for such filing in this Agreement, (ii) any of such Registration
Statements has not been declared effective by the Commission on or prior to
the date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been
Consummated within 30 business days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable
for its intended purpose (other than for any reason set forth in Section
6(c)(iii)(D) hereof) without being succeeded within two business days by a
post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"),
additional interest (the "Additional Interest") shall become payable in
respect of the Junior Subordinated Debentures (including in respect of
amounts accruing during any Extension Period (as defined in the Indenture))
and corresponding additional Distributions (the "Additional Distributions")
shall become payable to each Holder of Capital Securities (in its capacity
as such and not in its capacity as an indirect holder of a pro rata share
of the Junior Subordinated Debentures) with respect to the first 90-day
period immediately following the occurrence of such Registration Default in
an amount equal to $.25 per week per $1,000 liquidation amount of Capital
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The amount of Additional Interest, and the
9
corresponding amount of Additional Distributions payable to any Holder of
Capital Securities shall increase by an additional $.05 per week per $1,000
in principal amount of Capital Securities held by such Holder with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Additional Interest (and corresponding
Additional Distributions) of $.50 per week per $1,000 liquidation amount of
Capital Securities. All accrued Additional Interest (and corresponding
Additional Distributions) shall be paid to Holders by the Trust and the
Company by wire transfer of immediately available funds or by federal funds
check on the last day of each such 90-day period. Following the cure of
all Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of Additional Interest (and corresponding
Additional Distributions) with respect to such Transfer Restricted
Securities will cease.
All obligations of the Trust and the Company set forth in the
preceding paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations
with respect to such Transfer Restricted Security shall have been satisfied
in full.
(b) The Trust and the Company shall notify the Property Trustee
within one business day after each and every date on which an event occurs
in respect of which Additional Distributions are required to be paid (an
"Event Date"). Additional Distributions shall be paid by depositing
Additional Interest with the Property Trustee, in trust, for the benefit of
the Holders thereof, on or before the applicable Interest Payment Date
(whether or not any payment other than Additional Distributions is payable
on the Capital Securities), immediately available funds in sums sufficient
to pay the Additional Distributions then due to Holders of Transfer
Restricted Securities with respect to which the Property Trustee serves.
Each obligation to pay Additional Interest and Additional Distributions
shall be deemed to accrue from the applicable date of the occurrence of the
Registration Default.
6. REGISTRATION PROCEDURES.
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection
with the Exchange Offer, the Trust and the Company shall comply with
all of the provisions of Section 6(c) below, shall use their best
efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply with all
of the following provisions:
10
(i) If in the reasonable opinion of counsel to the
Trust and the Company there is a question as to whether the
Exchange Offer is permitted by applicable law, the Trust and the
Company hereby agree to seek a no-action letter from the
Commission allowing the Trust and the Company to Consummate an
Exchange Offer for such Securities. The Trust and the Company
hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission
policy. The Trust and the Company hereby agree, however, to (A)
participate in telephonic conferences with the Commission, (B)
deliver to the Commission staff an analysis prepared by counsel
to the Trust and the Company setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursue a resolution
(which need not be favorable) by the Commission staff of such
submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon the
request of the Trust or the Company, prior to the Consummation
thereof, a written representation to the Trust or the Company
(which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that
(A) it is not an affiliate of the Trust or the Company, (B) it is
not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the New Securities to be issued in the Exchange
Offer and (C) it is acquiring the New Securities in its ordinary
course of business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the Company's
and the Trust's preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a
distribution of the securities to be acquired in the Exchange
Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission
enunciated in MORGAN STANLEY AND CO., INC. (available June 5,
1991) and EXXON CAPITAL HOLDINGS CORPORATION (available May 13,
1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters
(including any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration
11
statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if
the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the
Trust or the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Trust shall provide a
supplemental letter to the Commission (A) stating that the
Company and the Trust are registering the Exchange Offer in
reliance on the position of the Commission enunciated in EXXON
CAPITAL HOLDINGS CORPORATION (available May 13, 1988), MORGAN
STANLEY AND CO., INC. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i)
above and (B) including a representation that the Company and the
Trust have not entered into any arrangement or understanding with
any Person to distribute the New Securities to be received in the
Exchange Offer and that, to the best of the Company's and the
Trust's information and belief, based only on written
representations received under clause (ii) above, that each
Holder participating in the Exchange Offer is acquiring the New
Securities in its ordinary course of business and has no
arrangement or understanding with any Person to participate in
the distribution of the New Securities received in the Exchange
Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the
Shelf Registration Statement, if any, the Company and the Trust shall
comply with all the provisions of Section 6(c) below and shall use
their best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant
thereto the Company and the Trust will as expeditiously as possible
prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof.
(c) GENERAL PROVISIONS. In connection with any
Registration Statement and any Prospectus required by this Agreement
to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the
related Prospectus required to permit resales of Securities by
Broker-Dealers), the Company and the Trust shall:
12
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4
of this Agreement, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company and the Trust shall file
promptly an appropriate amendment to such Registration Statement,
in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use their
best efforts to cause such amendment to be declared effective and
such Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration Statement
effective for the applicable period set forth in Section 3 or 4
hereof, as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the
Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by
the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to confirm
such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement under the Securities Act or of the
suspension by any state securities commission of the
13
qualification of the Transfer Restricted Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes, and (D) of the existence of
any fact or the happening of any event known to the Company,
after due inquiry, that makes any statement of a material fact
made in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to
or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading; PROVIDED
that the Company shall not be required to disclose the nature or
substance of any such fact or event as long as it is acting in
good faith. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Trust and the Company
shall use their best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
(iv) furnish to each of the selling or exchanging
Holders and each of the underwriter(s), if any, before filing
with the Commission, copies of any Shelf Registration Statement
or any Prospectus included therein or any amendments or
supplements to any such Shelf Registration Statement or
Prospectus (excluding all documents incorporated by reference
after the initial filing of such Registration Statement), which
documents will be subject to the review of such Holders and
underwriter(s), if any, for a period of at least five business
days, and the Trust and the Company will not file any such
Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus
(excluding all documents incorporated by reference) to which a
selling Holder of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any, shall
reasonably object in writing within five business days after the
receipt thereof;
(v) promptly after the filing of any document that is
to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document, upon request, to the
selling Holders and to the underwriter(s), if any, and, upon
request, make the Trust's and the Company's representatives
available for discussion of such document and other customary due
diligence matters;
14
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or any of
the underwriter(s), all financial and other records, pertinent
corporate documents and properties of the Trust and the Company
and cause the Trust's and the Company's officers, directors,
managers and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant
for the purpose of performing customary due diligence in
connection with such Registration Statement subsequent to the
filing thereof and prior to its effectiveness; provided however,
that the Company may decline to provide any requested information
which it reasonably believes, upon advice of outside counsel, to
be privileged, confidential or subject to legal or contractual
restrictions on disclosure; and provided further, that the
Company may require each Holder, underwriter, attorney or
accountant to sign a confidentiality agreement in form and
substance acceptable to the Company.
(vii) if requested by any selling Holders under the
Shelf Registration Statement or the underwriter(s), if any,
promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to
the "Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable
after the Trust and the Company are notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Securities covered
by the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Securities covered thereby or the
underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and
15
of each amendment thereto, including all exhibits and, upon
request, all documents and exhibits incorporated by reference
therein;
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; the Trust and the Company hereby consent to the use of
the Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;
(xi) enter into such customary agreements (including an
underwriting agreement), and make such customary representations
and warranties, and take all such other customary actions in
connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to
such extent as may be reasonably requested by any purchaser or by
any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement; and in connection with
an Underwritten Registration, the Trust and the Company shall:
(A) upon request, furnish to each selling Holder
and each underwriter, if any, in such substance and scope as
they may reasonably request and as are customarily made by
issuers to underwriters in primary underwritten offerings,
upon the date of the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of the
effectiveness of the Shelf Registration Statement,
signed by (y) the Chairman of the Board, its President
or a Vice President and (z) the Chief Financial Officer
of the Company, confirming, as of the date thereof,
such matters as such parties may reasonably request;
(2) an opinion, dated the date of the
effectiveness of the Shelf Registration Statement, of
counsel for the Company and the Trust, covering such
matters as such parties may reasonably request, and in
any event including a statement to the effect that such
counsel has participated in conferences with officers
16
and/or other representatives of the Company and the
Trust, representatives of the independent public
accountants for the Company, the Initial Purchaser's
representatives and the Initial Purchaser's counsel to
the extent such persons are available for such a
conference, in connection with the preparation of such
Registration Statement and the related Prospectus and
have considered the matters required to be stated
therein and the statements contained therein, although
such counsel has not independently verified the
accuracy, completeness or fairness of such statements
or in any documents incorporated by reference therein,
and take no responsibility therefore, except to the
extent set forth in the following clause; and that such
counsel advises that, on the basis of the foregoing
without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement
became effective, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no
responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial
data included in any Registration Statement
contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated the
date of the effectiveness of the Shelf Registration
Statement, from the Company's independent accountants,
in the customary form and covering matters of the type
customarily covered in comfort letters by underwriters
in connection with primary underwritten offerings.
(B) set forth in full or incorporate by reference
in the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect
17
to all parties to be indemnified pursuant to said Section;
and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company and the Trust pursuant
to this clause (xi), if any.
If at any time the representations and warranties of
the Company contemplated in clause (A)(1) above cease to be true
and correct to the knowledge of the Company, after due inquiry,
the Company shall so advise the Initial Purchaser and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky
laws of such jurisdictions in the United States as the selling
Holders or underwriter(s) may reasonably request and do any and
all other acts or things necessary or reasonably advisable to
enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration
Statement; PROVIDED, HOWEVER, that neither the Company nor the
Trust shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any
action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where
it is not now so subject;
(xiii) shall issue, upon the request of any Holder of
Securities covered by the Shelf Registration Statement, New
Securities in the same amount as the Securities surrendered to
the Company and the Trust by such Holder in exchange therefor or
being sold by such Holder; such New Securities to be registered
in the name of such Holder or in the name of the purchaser(s) of
such Securities, as the case may be; in return, the Securities
held by such Holder shall be surrendered to the Company and the
Trust for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
18
delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends;
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days
prior to any sale of Transfer Restricted Securities made by such
underwriter(s);
(xvi) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, as promptly as
is practicable under the circumstances in the good faith
determination of the Company prepare a supplement or post-
effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the
Registration Statement will not contain an untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein not misleading; and any Prospectus
will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(xvii) provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement and provide certificates for the Transfer
Restricted Securities;
(xviii) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation in accordance with clause (c)(vi) by any
underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use its best efforts to cause such
Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal
19
quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering or
(B) if not sold to underwriters in such an offering, beginning
with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration
Statement;
(xx) cause the Indenture and the Declaration to be
qualified under the TIA not later than the effective date of the
first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders
of Securities to effect such changes to the Indenture and the
Declaration as may be required for such Indenture and the
Declaration to be so qualified in accordance with the terms of
the TIA; and execute and use their best efforts to cause the
Indenture Trustee, Guarantee Trustee and the Property Trustee to
execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements
of Section 13(a) and Section 15(d) of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company or the
Trust of the existence of any fact or event of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof, or until it is advised in writing (the
"Advice") by the Company or the Trust that the use of the Prospectus
may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company or the Trust, each Holder
will deliver to the Company or the Trust (at the Company's and the
Trust's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
notice. In the event the Company or the Trust shall give any such
notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each
20
selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof or shall have received the
Advice.
7. REGISTRATION EXPENSES.
All expenses incident to the Company's and the Trust's
performance of or compliance with this Agreement, other than the
expenses of any Holder, will be borne by the Company and the Trust,
regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and
expenses (including filings made by any Purchaser with the NASD (and,
if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the New
Securities to be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company
and the Trust; (v) all application and filing fees in connection with
listing Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of
the Company and the Trust (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company and the Trust will, in any event, bear their
internal expenses (including, without limitation, all salaries and
expenses of their officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the
Company or the Trust.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or the Initial
Purchaser, as applicable, who seeks to sell New Securities, the Company and
the Trust shall indemnify and hold harmless each Holder of Transfer
Restricted Securities included within any such Shelf Registration Statement
and each participating Broker-Dealer or Initial Purchaser selling New
Securities, and each person, if any, who controls any such person within
the meaning of Section 15 of the Securities Act (each, a "Participant")
from and against any loss, claim, damage or liability, joint or several, or
21
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of
Securities) to which such Participant or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
in any such Registration Statement or any prospectus forming part thereof
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and which is
referred to in or induced as part of any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii)
above and shall reimburse each Participant promptly upon demand for any
legal or other expenses reasonably incurred by such Participant in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that (i) the Company and the Trust shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in any
such Registration Statement or any prospectus forming part thereof or in
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company or the Trust by or on behalf
of any Participant specifically for inclusion therein; and PROVIDED FURTHER
that as to any preliminary Prospectus, the indemnity agreement contained in
this Section 8(a) shall not inure to the benefit of any such Participant or
any controlling person of such Participant on account of any loss, claim,
damage, liability or action arising from the sale of the New Securities to
any person by that Participant if (i) that Participant failed to send or
give a copy of the Prospectus, as the same may be amended or supplemented,
to that person within the time required by the Securities Act and (ii) the
untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact in such preliminary Prospectus
was corrected in the Prospectus, unless, in each case, such failure
resulted from non-compliance by the Company and the Trust with Section
6(c). The foregoing indemnity agreement is in addition to any liability
which the Company and the Trust may otherwise have to any Participant or to
any controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall indemnify
and hold harmless the Company and the Trust, each of its respective
directors, officers, employees or agents and each person, if any, who
controls the Company and the Trust within the meaning of Section 15 of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Securities), to which the Company and the Trust or
22
any such director, officer, employees or agents or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary Prospectus, Registration Statement or
Prospectus or in any amendment or supplement thereto or (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company and the Trust
by or on behalf of that Participant specifically for inclusion herein, and
shall reimburse the Company and the Trust and any such director, officer,
employees or agents or controlling person promptly upon written demand for
any legal or other expenses reasonably incurred by the Company or the Trust
or any such director, officer, employees or agents or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any
liability which any Participant may otherwise have to the Company and the
Trust or any such director, officer, employee, agent or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and, PROVIDED FURTHER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim
or action shall be brought against an indemnified party, and it shall have
notified the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 8 for
any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that the Initial Purchaser shall have the
right to employ counsel to represent jointly the Initial Purchaser and
those other Participants and their respective officers, employees and
controlling persons who may be subject to liability arising out of any
23
claim in respect of which indemnity may be sought by the Participants
against the Company and the Trust under this Section 8 if, in the
reasonable judgment of the Initial Purchaser it is advisable for the
Initial Purchaser and those Participants, officers, employees and
controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by
the Trust and the Company. The Company and the Trust each shall have the
right to employ counsel to represent either or both of them and their
respective officers, directors, employees, trustees and agents and
controlling person who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Company or the Trust
under this Section 8 if, in the reasonably judgment of the Company and the
Trust it is advisable for the Company and/or the Trust and their respective
officers, directors, employees, trustees and agents to be jointly
represented by special counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the Participants. Each indemnified
party, as a condition of the indemnity agreements contained in Section 8,
shall use its best efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if
there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss of liability by reason of such settlement
or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to
reflect the relative fault of the Trust and the Company on the one hand and
the Participants on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations.
24
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Trust and the Company or the Participants, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Trust and the
Participants agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section 8(d) shall
be deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to
contribute any amount in excess of the amount by which proceeds received by
such Participant from an offering of the Notes exceeds the amount of any
damages which such Participant has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participants' obligations to contribute as provided
in this Section 8(d) are several and not joint.
9. RULE 144A.
The Company and the Trust hereby agrees with each Holder, for so
long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or
beneficial owner, upon request, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters
and other documents required under the terms of such underwriting
arrangements.
25
11. SELECTION OF UNDERWRITERS.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such
Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; PROVIDED, that such
investment bankers and managers must be reasonably satisfactory to the
Company.
12. MISCELLANEOUS.
(a) REMEDIES. The Company and the Trust agree that
monetary damages (including the Additional Interest and Additional
Distributions contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company and the Trust
have not entered into, and will not on or after the date of this
Agreement enter into, any agreement with respect to the Securities
that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The
Company and the Trust have not previously entered into any agreement
granting any registration rights with respect to the Securities to any
Person.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company and the
Trust will not take any action, or permit any change to occur, with
respect to Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the provisions hereof may not be given
unless the Company and the Trust have obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being
tendered pursuant to the Exchange Offer and that does not affect
directly or indirectly the rights of other Holders whose securities
are not being tendered pursuant to such Exchange Offer may be given by
the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
26
(e) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Trust; and
(ii) if to the Company and the Trust:
One Vandenberg Center
Grand Rapids, MI 49503
Attention: Corporate Secretary
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the
Trustee at the address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each
of the parties, including without limitation and without the need for
an express assignment, subsequent Holders of Transfer Restricted
Securities; PROVIDED, HOWEVER, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer
Restricted Securities from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
27
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the
other transaction documents is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein with respect to the registration
rights granted by the Company and the Trust with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
(l) REQUIRED CONSENTS. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is
required hereunder, Transfer Restricted Securities held by the Company
or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
OLD KENT FINANCIAL CORPORATION
By:/S/ MARY E. TUUK
Name: Mary E. Tuuk
Title: Vice President and Secretary
OLD KENT CAPITAL TRUST I
By:/S/ MARY E. TUUK
Name: Mary E. Tuuk
Title: Regular Trustee
Agreed and Accepted
as of the date hereof
LEHMAN BROTHERS INC.
By:/S/ ROBERT LIEBERBERG
Name: Robert Lieberberg
Title: Managing Director