1
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT dated as of June 12, 1997, among CONNING
CORPORATION, a Missouri corporation (the "Company"), GENERAL AMERICAN LIFE
INSURANCE COMPANY, a Missouri life insurance corporation ("General
American"), and GENERAL AMERICAN HOLDING COMPANY, a Missouri corporation and
a wholly owned subsidiary of General American ("Holding Company").
RECITALS
1. General American is the beneficial owner and Holding Company is
the record owner of 6,710,000 shares of Common Stock of the Company and on
the Closing Date (as defined below), General American will beneficially own
more than 60% of the outstanding Common Stock as of such date.
2. General American, through Holding Company, may desire, in the
future, to sell to the public some or all of such shares of Common Stock.
3. The Company, General American and Holding Company therefore deem
it to be in their respective best interests to set forth the rights of
General American and Holding Company and certain other holders of such shares
of Common Stock of the Company in connection with public offerings and sales
of such shares.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, and intending to be legally bound
hereby, the Company, General American and Holding Company hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
-----------
(a) "Common Stock" shall mean the common stock, par value $.01
per share, of the Company and any other securities into which or for which
such common stock has been converted or exchanged pursuant to a plan of
recapitalization, reorganization, merger, sale of assets, or otherwise.
(b) "Closing Date" shall mean the date on which the initial
public offering of the Company's Common Stock closes.
(c) "Effective Date" shall mean the date on which the SEC
declares the Company's Registration Statement on Form S-1 relating to the
initial public offering of shares of the Common Stock effective.
(d) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(e) "Form S-3" means such form of registration statement under
the Securities Act on the date hereof or any registration form under
the Securities Act
2
subsequently adopted by the SEC that permits the inclusion or
incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
(f) "Holder" means General American or Holding Company, so long
as it holds any Registrable Securities, and any direct or indirect
subsidiary of General American or Holding Company, any direct or
indirect parent corporation of General American or Holding Company,
or any direct or indirect subsidiary of any such parent corporation
owning Registrable Securities who is a permitted assignee of rights
under Section 12 of this Agreement.
(g) The terms "register," "registered," and "registration,"
refer to a registration effected by the preparation and filing of a
Registration Statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such Registration
Statement by the SEC.
(h) "Registrable Securities" shall mean the 6,710,000 shares of
Common Stock beneficially owned by General American prior to the
Closing Date or owned by any subsequent Holder or Holders, and, in
each case, all shares of Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which
is issued as) a dividend or other distribution with respect to, in
exchange for, or in replacement of such shares of Common Stock. The
term "Registrable Securities" excludes, however, any security (i) the
sale of which had been effectively registered under the Securities
Act and which had been disposed of in accordance with a Registration
Statement, (ii) that has been sold by a Holder in a transaction
exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof (including, without
limitation, transactions pursuant to Rules 144 and 144A) such that
the further disposition of such securities by the transferee or
assignee is not restricted under the Securities Act, (iii) that have
been sold by a Holder in a transaction in which such Holder's rights
under this Agreement are not, or cannot be, assigned, or (iv) for
which the registration rights provided under this Agreement have
expired pursuant to Section 16 of this Agreement.
(i) "Registration Expenses" shall mean (i) registration,
qualification and filing fees; (ii) fees and expenses of compliance
with state securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualification of
any Registrable Securities being registered); (iii) printing
expenses; (iv) internal expenses (including, without limitation, all
salaries and expenses of officers and employees performing legal or
accounting duties); (v) fees and disbursements of counsel for the
Company and customary fees and expenses for independent certified
public accountants retained by the Company (including the expenses of
any comfort letters or costs associated with the delivery by
independent certified public accountants of comfort letters
customarily requested by underwriters); (vi) fees and expenses of
listing any Registrable Securities on any securities exchange on
which the Common Stock is then listed; and (vii) fees and
disbursements of underwriters customarily paid by issuers or
2
3
sellers of securities, but excluding any underwriting fees, discounts
or commissions attributable to the sale of any Registrable Securities
and any fees and expenses of underwriters' counsel (other than as
provided in clause (ii) above).
(j) "Registration Statement" shall mean any registration
statement or similar document that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including
the prospectus or preliminary prospectus included therein, all
amendments and supplements to such Registrable Statement, including
post-effective amendments, all exhibits to such Registration
Statement, and all material incorporated by reference in such
Registration Statement.
(k) "Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto.
(l) "Rule 144A" shall mean Rule 144A promulgated under the
Securities Act or any successor rule thereto.
(m) "SEC" shall mean the Securities and Exchange Commission.
(n) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
2. Demand Registration.
-------------------
(a) If the Company shall receive at any time on or after the
first anniversary of the Effective Date, a written request, in the
manner provided in Section 19, from the Holders of Registrable
Securities representing at least ten percent (10%) of the Common
Stock then outstanding that the Company file a registration statement
under the Securities Act covering the registration of any or all of
such Holders' Registrable Securities, then the Company shall (i)
within 10 days of the receipt thereof, give written notice, in the
manner provided in Section 19, of such request to all Holders of
outstanding Registrable Securities known to the Company, and (ii)
subject to the limitations contained in this Section 2, use its
reasonable best efforts to effect, as soon as practicable and in any
event within 120 days of the receipt of such request, the
registration under the Securities Act of all Registrable Securities
for which the Company receives a request from the Holders thereof in
the manner provided in Section 19, within 20 days of the mailing of
such notice by the Company. The Company, however, shall not be
required to effect a registration pursuant to this Section 2 unless
the aggregate number of shares requested to be registered represents
at least ten percent (10%) of the Common Stock then outstanding.
(b) If the Holder(s) initiating the registration request
hereunder (collectively, the "Initiating Holder") intends to
distribute the Registrable Securities covered by its request by means
of an underwriting, it shall so advise the Company as a part of its
request made pursuant to Section 2(a) and the Company shall include
such information in the written notice to the Holders referred to in
Section 2(a). In such event,
3
4
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 to the extent provided herein. All
Holders proposing to sell securities through such underwriting
(together with the Company as provided in Section 5(g) of this
Agreement and any other holder of shares of Common Stock permitted to
participate in such registration pursuant to this Section 2(b)) shall
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the
Initiating Holder (provided the same are underwriters of recognized
national standing reasonably acceptable to the Company), upon the
terms and conditions agreed upon between the Company and such
underwriter(s). Notwithstanding any other provisions of this Section
2, if the underwriter(s) advise the Initiating Holder in writing that
marketing or other factors require a limitation of the number of
Registrable Securities to be underwritten, then the Company shall so
advise Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto, and the number of Registrable
Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holder,
in proportion (as nearly as practicable) to the number of Registrable
Securities which each Holder requested be included in such
registration. If the number of Registrable Securities to be
underwritten has not been so limited, the Company may include shares
of Common Stock for its own account (or for the account of other
shareholders) in such registration if the underwriter(s) so agree and
to the extent that, in the opinion of such underwriter(s), the
inclusion of such additional shares will not adversely affect the
offering of the Registrable Securities included in such registration.
(c) The Company shall not be obligated to effect a total of more
than two registrations pursuant to this Section 2, Section 4 and
Section 3 (provided, with respect to registrations under Section 3,
that the Holder was able to dispose of at least 80% of the
Registrable Securities it requested be registered) and shall not be
obligated to effect more than one registration in any twelve-month
period pursuant to this Section 2 or Section 4.
(d) A registration effected pursuant to this Section 2, if
effected by the Company on Form S-3, shall be counted as a Form S-3
registration effected pursuant to Section 4.
3. Incidental Registration.
-----------------------
(a) After the Effective Date, if (but without any obligation to
do so) the Company proposes to register (excluding a registration
effected by the Company for shareholders other than the Holders,
except in the case of a firm commitment underwriting) any shares of
Common Stock under the Securities Act in connection with the public
offering of such shares solely for cash on any form of Registration
Statement in which the inclusion of Registrable Securities is
appropriate (other than a registration (i)
4
5
relating solely to the sale of securities to participants in a
Company stock plan, (ii) pursuant to a Registration Statement on Form
S-4 or Form S-8 (or any successor forms) or any form that does not
include substantially the same information, other than information
relating to the selling shareholders or their plan of distribution,
as would be required to be included in a registration statement
covering the sale of Registrable Securities, (iii) in connection with
any dividend reinvestment or similar plan, or (iv) for the sole
purpose of offering securities to another entity or its
securityholders in connection with the acquisition of assets or
securities of such entity or any similar transaction), the Company
shall promptly give each Holder written notice of such registration
in the manner provided in Section 19 at least 20 days before the
anticipated filing date of any such Registration Statement. Upon the
written request of any Holder given in the manner provided in Section
19 within 10 days after the mailing of such notice by the Company,
the Company shall, subject to the provisions of Section 8 hereof,
cause to be registered under the Securities Act all of the
Registrable Securities that such Holder has so requested to be
registered. The Company shall not be required to proceed with, or
maintain the effectiveness of, any registration of its securities
after giving the notice herein provided, and the right of any Holder
to have Registrable Securities included in such Registration
Statement shall be conditioned upon participation in any underwriting
to the extent provided herein. The Company shall not be required to
include any Registrable Securities in such underwriting unless the
Holders thereof enter into an underwriting agreement in customary
form, and upon terms and conditions agreed upon between the Company
and the underwriter(s) (except as to monetary obligations of the
Holders not contemplated by Section 7 of this Agreement), with the
underwriter(s) selected by the Company. In the event that the
underwriter(s) shall advise the Company that marketing or other
factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of
Registrable Securities that would otherwise be underwritten pursuant
hereto. The underwriter(s) may exclude some or all of the
Registrable Securities from such underwriting and the number of
Registrable Securities, if any, that may be included in the
underwriting shall be allocated among all Holders thereof in
proportion (as nearly as practicable) to the number of Registrable
Securities which each Holder requested be included in such
registration. Nothing in this Section 3 is intended to diminish the
number of securities to be included by the Company in such
underwriting. The Company and the underwriter(s) selected by the
Company shall make all determinations with respect to the timing,
pricing, and other matters related to the offering.
(b) A registration effected pursuant to this Section 3 shall be
counted as a Form S-3 registration under Section 4 if the Holder was
able to dispose of at least 80% of the Registrable Securities it
requested be registered.
4. Form S-3 Registration.
---------------------
(a) In case, after the first anniversary of the
Effective Date, the Company shall receive from any Holder(s) of
Registrable Securities representing at least ten percent (10%) of the
Common Stock then outstanding a written request or requests
5
6
that the Company effect a registration on Form S-3 and any related
qualifications or compliance with respect to any or all such
Registrable Securities owned by such Holder(s), the Company shall (i)
promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders of
Registrable Securities in the manner provided in Section 19, and (ii)
as soon as practicable, and, subject to the further provisions of
this Section 4, in any event within 90 days of the initial request,
effect such registration and all such qualifications and compliances
as may be so requested and as would permit or facilitate the sale and
distribution of all of the Registrable Securities specified in such
request, together with all of the Registrable Securities of any other
Holder or Holders as are specified in a request given in the manner
provided in Section 19 within 15 days after mailing of such notice by
the Company.
(b) The Company shall not be obligated to effect any
registration, qualification or compliance pursuant to this Section 4
if (i) Form S-3 is not available for such offering by the requesting
Holder(s) or (ii) the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities, if
any, at an aggregate price to the public (net of any underwriters'
discounts or commissions) of less than $5,000,000.
(c) The Company shall not be obligated to effect more than a
total of two registrations pursuant to this Section 4 and shall not
be obligated to effect more than one registration in any twelve-month
period pursuant to this Section 4, Section 2 and Section 3 (provided,
with respect to registrations under Section 3, that the Holder was
able to dispose of at least 80% of the Registrable Securities it
requested be registered).
(d) A registration effected pursuant to this Section 4 shall be
counted as a demand registration effected pursuant to Section 2.
5. Registration Procedure. Whenever required under this
----------------------
Agreement to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonable practicable:
(a) Prepare and file with the SEC a new Registration Statement
with respect to such Registrable Securities and use its reasonable
best efforts to cause such registration statement to become
effective, and keep such Registration Statement effective for up to
90 days or such shorter period as shall be required to sell all of
the Registrable Securities covered by such Registration Statement
(except as provided in Section 3); provided, however, that if such
Registration Statement is on Form S-3 and related to a distribution
by the Holders on a delayed or continuous basis other than by means
of an underwriting, the Company shall keep such Registration
Statement effective for one year following the initial date of
effectiveness thereof; provided further that no Registration
Statement need remain in effect after all Registrable Securities
covered thereby have been sold.
6
7
(b) Prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in
connection with such Registration Statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement.
(c) Furnish to the Holders of Registrable Securities to be
registered, without charge, such number of copies of a prospectus,
including a preliminary prospectus, and any amendment or supplement
thereto as they may reasonably request and a reasonable number of
copies of the then-effective Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference).
(d) 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 to the Holders of
Registrable Securities covered thereby and any underwriter.
(e) Use its reasonable best efforts to register and qualify the
securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Holders; provided, however, that the
Company shall not be required to qualify to do business or to file a
general consent to service of process in any such states or
jurisdictions where it would not otherwise be required to so qualify
to do business or consent to service of process or subject itself to
taxation in any such jurisdiction.
(f) Cooperate with the Holders of Registrable Securities and
each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any
filings required to be made with the National Association of
Securities Dealers, Inc.
(g) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual
and customary form, with the underwriter(s) of such offering, with
such terms and conditions as the Company and the underwriter(s) may
agree. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement.
(h) Notify each Holder of Registrable Securities covered by such
Registration Statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included
in such Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then
existing.
7
8
(i) Cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or automated
quotation system on which shares of the Company's Common Stock are
then listed. If any of such shares are not so listed, the Company
shall cause such shares to be listed on such securities exchange or
automated quotation system as may be reasonably requested by the
Holders of a majority of the Registrable Securities being registered.
(j) In the case of an underwritten public offering, furnish, at
the request of any Holder requesting registration pursuant to this
Agreement, on the date that such Registrable Securities are delivered
to the underwriters for sale in connection with a registration
pursuant to this Agreement, (A) an opinion of counsel representing the
Company for the purposes of such registration, and (B) a letter from
independent certified public accountants of the Company, in each case
to be dated such date and to be in form and substance as is
customarily given by counsel or independent certified public
accountants, as the case may be, to underwriters in an underwritten
public offering, addressed to the underwriters.
(k) Permit a representative of any Holder of Registrable
Securities, any underwriter participating in any disposition pursuant
to such registration, and any attorney or accountant retained by such
Holder or underwriter, to participate, at each person's own expense,
in the preparation of the Registration Statement, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such registration;
provided, however, that, if requested by the Company, such
representatives, underwriters, attorneys or accountants enter into a
confidentiality agreement, in form and substance reasonably
satisfactory to the Company, prior to the release or disclosure of
any such information.
Notwithstanding the foregoing, the Company may delay, suspend or withdraw any
registration or qualification of Registrable Securities required pursuant to
this Agreement for a period not exceeding 120 days if the Company shall in
good faith determine that any such registration would adversely affect a
public or private offering or contemplated offering of any securities of the
Company or any other anticipated or contemplated material corporate event.
In addition, the Company shall not be required to register Registrable
Securities within twelve months after the effective date of a Registration
Statement referred to in Section 3 pursuant to which the Holders were
afforded the opportunity to register Registrable Securities.
6. Holder's Obligation to Furnish Information. It shall be a
------------------------------------------
condition precedent to the obligations of the Company to take any action
pursuant to this Agreement with respect to any Registrable Securities that
the Holder of such securities furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended
method of disposition of such securities as shall be required to effect the
registration of such Holder's Registrable Securities.
8
9
Each Holder agrees that, upon receipt of any notice from the Company,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the then current prospectus until (i) such Holder is advised in
writing by the Company that a new Registration Statement covering the reoffer
of Registrable Securities has become effective under the Securities Act or
(ii) such Holder receives copies of a supplemental or amended prospectus
contemplated by Section 5 hereof, or until such Holder is advised in writing
by the Company that the use of the prospectus may be resumed. The Company
shall use its reasonable best efforts to limit the duration of any
discontinuance of disposition of Registrable Securities pursuant to this
paragraph.
7. Registration Expenses.
---------------------
(a) In the case of any demand registration pursuant to Section 2
and any registration on Form S-3 pursuant to Section 4, the Company
shall pay all Registration Expenses; provided, however, that the
Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2 or Section 4 if
the registration request is subsequently withdrawn at the request of
the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such
expenses), unless the Holders of a majority of Registrable Securities
to be registered agree to forfeit their right to one demand
registration pursuant to Section 2 or Section 4, as the case may be;
provided further, however, that if at the time of such withdrawal,
the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to
the Holders at the time of their request, then the Holders shall not
be required to pay any of such expenses and shall retain their rights
pursuant to Section 2 or Section 4, as the case may be.
(b) In the case of any incidental registration pursuant to
Section 3, the requesting Holders shall bear any incremental
Registration Expenses, including, without limitation, incremental
registration and qualification fees and expenses (including
underwriter's fees, discounts and commissions), and any incremental
costs and disbursements (including legal fees and expenses) that
result from the inclusion of the Registrable Securities included in
such registration, with such incremental expenses being borne by the
requesting Holders on a pro rata basis.
8. Effectiveness of Registration. A registration requested
-----------------------------
pursuant to Section 2 or Section 4 will not be deemed to have been effected
if (i) the registration statement has not been kept effective for the period
required under Section 5(a) of this Agreement, (ii) the offering of
Registrable Securities pursuant to such registration is interfered with by
any stop order, injunction or other order or requirement of the SEC or other
governmental agency or court, or (iii) the conditions to the closing of any
such registration that is underwritten are not satisfied.
9. Delay of Registration. No Holder shall have any right to
---------------------
obtain or seek an injunction restraining or otherwise delaying any
registration of the Company's securities as the result of any controversy
that might arise with respect to the interpretation or implementation of this
Agreement.
9
10
10. Indemnification and Contribution. In the event any
--------------------------------
Registrable Securities are included in a Registration Statement pursuant to
this Agreement:
(a) The Company will indemnify and hold harmless each Holder,
its directors, officers and employees and each person, if any, who
"controls" such Holder (within the meaning of the Securities Act)
against all losses, claims, damages, or liabilities, joint or
several, or actions in respect thereof to which such Holder or other
person entitled to indemnification hereunder may become subject under
the Securities Act, or otherwise, insofar as such loss, claims,
damages, liabilities or actions in respect thereof arise out of, or
are based upon, any untrue statement or alleged untrue statement of
any material fact contained in such Registration Statement, any
related preliminary prospectus, or any related prospectus or any
amendment or supplement thereto, or arise out of, or are based upon,
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Holder or other
person entitled to indemnification hereunder for any legal or other
expenses reasonably incurred by it in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be so liable to the
extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to
state a material fact in such Registration Statement, such
preliminary prospectus, or such prospectus, or any such amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of a Holder or
an underwriter specifically for use therein; and provided further
that the Company will not be liable, and this indemnification
agreement shall not apply, in any such case to the extent that any
such loss, claim, damage, liability or action is solely attributable
to the failure of such Holder (or underwriter or agent acting on its
behalf) to deliver a final prospectus (or amendment or supplement
thereto) that corrects a material misstatement or omission contained
in the preliminary prospectus (or final prospectus). The Company
will also indemnify underwriters, selling brokers, dealer managers
and similar securities industry professionals participating in the
distribution, their officers and directors and each person who
"controls" such persons (within the meaning of the Securities Act) to
the same extent as provided above with respect to the indemnification
of the Holders, if so requested, except with respect to information
furnished in writing specifically for use in any prospectus or
Registration Statement by any selling Holders or any such
underwriters.
(b) With respect to written information furnished to the
Company by or on behalf of a Holder specifically for use in a
Registration Statement, any related preliminary prospectus, or any
related prospectus or any supplement or amendment thereto, such
Holder will severally indemnify and hold harmless the Company, and
its directors, officers and employees and each person, if any, who
"controls" the Company (within the meaning of the Securities Act)
against any losses, claims, damages or liabilities, joint or several,
or actions in respect thereof, to which the Company or such other
person entitled to indemnification hereunder may become subject under
the Securities Act, or otherwise, insofar as such losses, claims,
damages, liabilities or actions
10
11
in respect thereof arise out of, or are based upon, any untrue
statement or alleged untrue statement of any material fact contained
in such Registration Statement, such preliminary prospectus, or such
prospectus, or any such amendment or supplement thereto, or arise out
of, or are based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; and such Holder will
reimburse the Company and such other persons for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action, in
each case to the extent, but only to the extent, that the same arises
out of, or is based upon, an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to
state a material fact in such Registration Statement, such
preliminary prospectus, or such prospectus or any such amendment or
supplement thereto in reliance upon, and in conformity with, such
written information. The Company shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to
the information so furnished in writing by such persons specifically
for inclusion in any prospectus or Registration Statement. The
Holder will also indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals participating
in the distribution, their officers and directors and each person who
"controls" such persons (within the meaning of the Securities Act) to
the same extent as provided above with respect to the indemnification
of the Company, if so requested.
(c) Promptly after receipt by an indemnified party of notice of
any claim or the commencement of any action, the indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party, 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 will not relieve it from any
liability that it may have to the indemnified party except to the
extent it was actually damaged or suffered any loss or incurred any
additional expense as a result thereof. If any such claim or action
is brought against an indemnified party, and it notified the
indemnifying party thereof, the indemnifying party will be entitled
to assume the defense thereof with counsel selected by the
indemnifying party and 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,
(i) the indemnifying party will not be liable to the indemnified
party for any legal or other expense subsequently incurred by the
indemnified party in connection with the defense thereof, (ii) the
indemnifying party will not be liable for the costs and expenses of
any settlement of such claim or action unless such settlement was
effected with the written consent of the indemnifying party or the
indemnified party waived any rights to indemnification hereunder in
writing, in which case the indemnified party may effect a settlement
without such consent, and (iii) the indemnified party will be
obligated to cooperate with the indemnifying party in the
investigation of such claim or action; provided, however, that the
Holders and their respective controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity
may be sought by such Holders against the Company may employ their
own counsel if they have been advised by counsel in writing that, in
the
11
12
reasonable judgment of such counsel, it is advisable for such Holders
and their controlling persons to be represented by separate counsel
due to the presence of conflicts of interest, and in that event the
fees and expenses of such separate counsel will also be paid by the
Company; provided that the Company shall not be liable for the
reasonable fees and expenses of more than one separate counsel at any
time for all such indemnified parties. An indemnifying party shall
not, without the prior written consent of the indemnified parties,
settle, 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 a release of such indemnified party
reasonably acceptable to such indemnified party from all liability
arising out of such claim, action, suit or proceeding or unless the
indemnifying party shall confirm in a written agreement reasonably
acceptable to such indemnified party, that notwithstanding any
federal, state or common law, such settlement, compromise or consent
shall not adversely affect the right of any indemnified party to
indemnification or contribution as provided in this Agreement.
(d) If for any reason the indemnification provided for in
Sections 10(a) or (b) is unavailable to an indemnified party or is
insufficient to hold it harmless as contemplated therein, then the
indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnifying and the
indemnified party, but also the relative fault of the indemnifying
party and the indemnified party, as well as any other relevant
equitable considerations. 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.
(e) The obligations under this Section 10 shall survive the
completion of any offering of Registrable Securities in a
Registration Statement pursuant to this Agreement, and otherwise.
11. Reports Under Exchange Act. With a view to making available
--------------------------
to the Holders the benefits of Rule 144 and any other rule or regulation of
the SEC that may at any time permit a Holder to sell securities of the
Company to the public without registration or pursuant to registration on
Form S-3, the Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after 90 days
after the Effective Date;
(b) Take such action, including the voluntary registration of
its Common Stock under Section 4 of the Exchange Act, as is necessary
to enable the Holders to utilize Form S-3 for the sale of their
Registrable Securities, such action to be taken as soon as
practicable after the end of the fiscal year in which the first
Registration
12
13
Statement filed by the Company for the offering of its securities to
the general public is declared effective;
(c) File with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Exchange Act; and
(d) Furnish to any Holder, so long as the Holder owns any
Registrable Securities, upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of Rule
144 (at any time after 90 days after the Effective Date), the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), or as to its qualification
that it qualifies as a registrant whose securities may be resold
pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy
of the most recent annual or quarterly report of the Company and such
other reports and documents so filed by the Company, and (iii) such
other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC which permits the selling
of any such securities without registration or pursuant to such form.
12. Assignment of Registration Rights.
---------------------------------
(a) The rights to cause the Company to register Registrable
Securities pursuant to this Agreement may be assigned by General
American or Holding Company to a direct or indirect subsidiary of
General American or Holding Company or any direct or indirect parent
of General American or Holding Company or any other direct or
indirect subsidiary of any such parent entity (each, a "Permitted
Assign"); provided, however, that (i) the Company is, promptly upon
such transfer, furnished with written notice of the name and address
of such transferee or assignee and the securities with respect to
which such registration rights are being assigned, (ii) the transfer
of such securities may be effected in accordance with all applicable
securities law, (iii) immediately following such transfer the further
disposition of such securities by the transferee or assignee is
restricted under the Securities Act, and (iv) the transferee executes
and agrees to be bound by this Agreement, an executed counterpart of
which shall be furnished to the Company.
(b) Except in connection with a transfer permitted under Section
12(a) above, in no event may the rights of Holders hereunder be
transferred or assigned, it being intended that the rights of General
American and Holding Company under this Agreement may be exercised
only by General American or Holding Company or a Permitted Assign,
subject to the provisions and restrictions of Section 12(a) above.
13. Limitations on Subsequent Registration Rights. From and
---------------------------------------------
after the date of this Agreement, except as otherwise contemplated by the
Series A Purchase Notice dated May 12, 1997 and the Series B Call Notice
dated March 23, 1997, the Company shall not, without the prior written
consent of the Holders of a majority of the outstanding Registrable
13
14
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder to (i) include such securities in any registration filed under Section
2, 3 or 4 hereof, or (ii) require the Company to effect a registration,
unless under the terms of such agreement, such holder or prospective holder
may include such securities in any such registration only to the extent that
the inclusion of such holder's securities will not reduce the amount of the
Registrable Securities included in such registration and such agreement
includes the equivalent of Section 15 as a term.
14. Amendment of Registration Rights. Any provision of this
--------------------------------
Agreement may be amended or the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders
of a majority of Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this Section shall be binding upon each
Holder of any Registrable Securities, each future Holder of such securities
and the Company.
15. "Market Stand-Off" Agreement. Any Holder, if requested by
----------------------------
the Company or an underwriter of an underwritten public offering, agrees not
to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise transfer or dispose of any Common Stock held by such Holder
(other than Registrable Securities included in the registration) without the
prior written consent of the Company or such underwriter(s), as the case may
be, during a period of up to seven days prior to and 180 days following the
effective date of any underwritten registration of the Company's securities
effected pursuant to Section 2, 3 or 4 hereof. Such agreement shall be in
writing in form satisfactory to the Company and such underwriter, and may be
included in the underwriting agreement. The Company may impose stop-transfer
instructions with respect to the securities subject to the foregoing
restriction until the end of the required stand-off period.
16. Termination of Registration Rights. If the number of shares
----------------------------------
of Registrable Securities owned by a Holder represents less than one percent
(1%) of the total number of shares of Common Stock then outstanding, then
such Holder's registration rights under this Agreement relating to such
Registrable Securities shall terminate on the date such Holder is able to
dispose of all of its shares of Registrable Securities in any 90-day period
pursuant of Rule 144. All registration rights (except for rights previously
exercised in connection with an underwritten public offering pursuant to
Section 3) of a Holder under this Agreement shall terminate on the date on
which all of such Holder's shares of Registrable Securities can be sold
pursuant to Rule 144(k).
17. Effective Date of Agreement. This Agreement shall become
---------------------------
effective June 12, 1997.
18. Information Confidential. No Holder may use any confidential
------------------------
information received by it pursuant to this Agreement in violation of the
Exchange Act or reproduce, disclose, or disseminate such information to any
other person (other than its employees or agents having a need to know the
contents of such information and its attorneys), except to the extent
reasonably related to the exercise of rights under this Agreement, unless
such
14
15
information has been made available to the public generally (other than by
such recipient in violation of this Section 18) or such recipient is required
to disclose such information by a governmental body or regulatory agency or
by law in connection with a transaction that is not otherwise prohibited
hereby.
19. Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, or air-courier guaranteeing overnight delivery:
(a) If to a Holder of Registrable Securities, initially one copy
each to the Chief Executive Officer and General Counsel at 700 Market
Street, St. Louis, Missouri 63101, Attention: Matthew P. McCauley
(facsimile: (314) 444-0510), and thereafter at such other address as
may be designated from time to time by notice given in the manner
provided in this Section 19.
(b) If to the Company, initially at 700 Market Street, St.
Louis, Missouri 63101, Attention: Fred M. Schpero (facsimile: (314)
444-0676), and thereafter at such other address as may be designated
from time to time by notice given in the manner provided in this
Section 19.
(c) All such notices and other communications shall be deemed to
have been delivered and received (i) in the case of personal
delivery, telex, telecopier or telegram, on the date of such
delivery, (ii) in the case of air courier, on the business day after
the date when sent and (iii) in the case of mailing, on the third
business day following such mailing.
(d) From time to time as the Company may request, each Holder
shall provide to the Company such evidence or documentation
reasonably satisfactory to the Company, in its sole discretion,
certified by an appropriate officer of such Holder, regarding the
number of shares of Common Stock beneficially owned by such Holder
and its status as an "affiliate" under the Securities Act.
20. Successors and Assigns. Subject to the provisions of Section
----------------------
12 hereof, this Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties.
21. 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.
22. Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
23. Governing Law. This Agreement shall be governed by and
-------------
constructed in accordance with the internal laws of the State of Missouri.
15
16
24. 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.
25. Entire Agreement. This Agreement 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. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
16
17
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
CONNING CORPORATION
By: /s/ Leonard M. Rubenstein
---------------------------------------
Name: Leonard M. Rubenstein
Title: Chairman and Chief Executive Officer
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: /s/ Richard A. Liddy
---------------------------------------
Name: Richard A. Liddy
Title: Chairman, President and Chief
Executive Officer
GENERAL AMERICAN HOLDING COMPANY
By: /s/ Richard A. Liddy
---------------------------------------
Name: Richard A. Liddy
Title: President
17