EXHIBIT 4.3
CINCINNATI FINANCIAL CORPORATION
6.125% Senior Notes due 2034
Registration Rights Agreement
This REGISTRATION RIGHTS AGREEMENT dated November 1, 2004 (the
"AGREEMENT") is entered into by and among Cincinnati Financial Corporation, an
Ohio corporation (the "COMPANY"), and J.P. Morgan Securities Inc. and UBS
Securities LLC, as representatives of the Initial Purchasers listed on Schedule
1 to the Purchase Agreement referred to below (each an "INITIAL PURCHASER" and,
collectively, the "INITIAL PURCHASERS").
The Company and the Initial Purchasers are parties to the Purchase
Agreement dated November 1, 2004 (the "PURCHASE AGREEMENT"), which provides for
the sale by the Company to the Initial Purchasers of $375,000,000 aggregate
principal amount of the Company's 6.125% Senior Notes due 2034 (the
"SECURITIES"). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide to the Initial Purchasers
and their direct and indirect transferees the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City or Cincinnati, Ohio are
authorized or required by law to remain closed.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"EXCHANGE DATES" shall have the meaning set forth in Section 2(b)(ii)
hereof.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of Exchange
Securities for Registrable Securities pursuant to Section 2(a)-(e) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the
Securities Act effected pursuant to Section 2(a)-(e) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean senior notes issued by the Company under
the Indenture containing terms identical to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any
increase in annual interest rate for failure to comply with this Agreement) and
to be offered to Holders of Securities in exchange for such Securities pursuant
to the Exchange Offer.
"HOLDERS" shall mean the Initial Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"INDENTURE" shall mean the Indenture and the Supplemental Indenture
relating to the Securities, each dated as of the date hereof, between the
Company and The Bank of New York Trust Company, N.A., as trustee, and as the
same may be amended from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"INSPECTOR" shall have the meaning set forth in Section 3(a)(xiii) hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of the outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, any Registrable Securities owned
directly or indirectly by the Company or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage or amount; and provided, further, that if the
Company shall issue any additional Securities under the Indenture prior to
consummation of the Exchange Offer or, if applicable, the effectiveness of any
Shelf Registration Statement, such additional Securities and the Registrable
Securities to which this Agreement relates shall be treated together as one
class for purposes of determining whether the consent or approval of Holders of
a specified percentage of Registrable Securities has been obtained.
"PARTICIPATING BROKER-DEALERS" shall have the meaning set forth in Section
4(a) hereof.
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"PERSON" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble.
"REGISTRABLE SECURITIES" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Securities cease to be
outstanding.
"REGISTRATION DEFAULT" includes any of the following: (i) the Company
fails to file any of the Registration Statements required by this Agreement on
or before the date specified for such filing, (ii) any of such Registration
Statements is not declared effective by the SEC on or prior to the date
specified for such effectiveness, (iii) the Company fails to complete the
Exchange Offer on or prior to the date specified for such completion; or (iv)
the Shelf Registration Statement is declared effective but thereafter ceases to
be effective or usable in connection with resales of the Securities during the
period specified in the Agreement, subject to the Company's right to suspend the
availability of the Shelf Registration Statement for certain periods.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees; (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities); (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement; (iv) all rating agency fees; (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws; (vi) the fees and disbursements of the Trustee and
its counsel; (vii) the fees and disbursements of counsel for the Company and, in
the case of a Shelf Registration
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Statement, the fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel may also be
counsel for the Initial Purchasers); and (viii) the fees and disbursements of
the independent public accountants of the Company, including the expenses of any
special audits or "comfort" letters required by or incident to the performance
of and compliance with this Agreement, but excluding fees and expenses of
counsel to the Underwriters (other than fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions, brokerage
commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"SEC" shall mean the United States Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time.
"SHELF EFFECTIVENESS PERIOD" shall have the meaning set forth in Section
2(g)(iii) hereof.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(f)- (h) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of the Company that covers all or a portion of the Registrable Securities (but
no other securities unless approved by the Holders whose Registrable Securities
are to be covered by such Shelf Registration Statement) on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by
reference therein.
"STAFF" shall mean the staff of the SEC.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"TRUSTEE" shall mean the trustee with respect to the Securities under the
Indenture.
"UNDERWRITER" shall have the meaning set forth in Section 3(e) hereof.
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"UNDERWRITTEN OFFERING" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited
by any applicable law or applicable interpretations of the Staff, the Company
shall (i) file an Exchange Offer Registration Statement covering an offer to the
Holders to exchange all the Registrable Securities for Exchange Securities no
later than the 90th day after the date that the Securities are first issued,
(ii) use its reasonable best efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act no later than the 150th
day after the Securities are first issued, (iii) use its reasonable best efforts
to commence the Exchange Offer within 30 days after the Exchange Offer
Registration Statement is declared effective by the SEC and keep the Exchange
Offer open for a period of not less than 20 Business Days (or longer, if
required by applicable law) after the date on which the notice of the Exchange
Offer is mailed to Holders of the Securities and (iv) complete the Exchange
Offer not later than the 180th day after the Securities are first issued.
(b) The Company shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents
to each Holder stating, in addition to such other disclosures as are required by
applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Registrable Securities validly tendered and not properly
withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the
"EXCHANGE DATES");
(iii) that any Registrable Security not tendered will remain outstanding
and continue to accrue interest but will not retain any rights under
this Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner
specified in the notice, prior to the close of business on the last
Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or
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letter setting forth the name of such Holder, the principal amount
of Registrable Securities delivered for exchange and a statement
that such Holder is withdrawing its election to have such Securities
exchanged.
(c) As a condition to participating in the Exchange Offer, a Holder will
be required to represent to the Company that:
(i) any Exchange Securities to be received by it will be acquired in the
ordinary course of its business;
(ii) at the time of the commencement of the Exchange Offer, it has no
arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the
Exchange Securities in violation of the provisions of the Securities
Act;
(iii) it is not an "affiliate" (within the meaning of Rule 405 under the
Securities Act) of the Company, or if it is an affiliate, it will
comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable;
(iv) if it is not a broker-dealer, it is not engaged in, and do not
intend to engage in, the distribution of the Exchange Securities;
and
(v) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities that were acquired as a result of market-making or other
trading activities, then such Holder will deliver a Prospectus in
connection with any resale of such Exchange Securities; and
(vi) it is not acting on behalf of any person who could not truthfully
make the foregoing representations.
(d) As soon as practicable after the last Exchange Date, the Company
shall:
(i) accept for exchange Registrable Securities or portions thereof
validly tendered and not properly withdrawn pursuant to the Exchange
Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Securities or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and deliver to each Holder, Exchange Securities equal
in principal amount to the principal amount of the Registrable
Securities surrendered by such Holder.
(e) The Company shall complete the Exchange Offer as provided above and
shall comply in all material respects with the applicable requirements of the
Securities
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Act, the Exchange Act and other applicable laws and regulations in connection
with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate any applicable
law or applicable interpretations of the Staff.
(f) In the event that (i) after the date the Securities are issued, there
is a change in law or applicable interpretations of the law by the staff of the
SEC, and as a result, the Company is not permitted to complete the Exchange
Offer as contemplated by this Agreement, (ii) any Holder of the Securities is
prohibited by law or SEC policy to participate in the Exchange Offer, (iii) any
Holder of the Securities does not receive freely tradable Exchange Notes, (iv)
the Exchange Offer Registration Statement is not declared effective or the
Exchange Offer is not consummated prior to the dates specified in this
Agreement, or (v) any Initial Purchaser so requests with respect to Securities
that are not eligible to be exchanged for Exchange Securities in the Exchange
offer and that are held by it following consummation of the Exchange Offer, the
Company is requested to do so by any Initial Purchaser, the Company shall use
its reasonable best efforts to cause to be filed as soon as practicable after
such determination, date or request, as the case may be, a Shelf Registration
Statement providing for the sale of all the Registrable Securities by the
Holders thereof and to have such Shelf Registration Statement declared effective
by the SEC.
(g) In the event that the Company is required to file a Shelf Registration
Statement, the Company shall use its reasonable best efforts to:
(i) file a Shelf Registration Statement with the SEC after such
obligation arises;
(ii) cause the Shelf Registration Statement to be declared effective by
the SEC as promptly as reasonably practicable after filing, but no
later than the 210th day after the Securities are first issued; and
(iii) keep the Shelf Registration Statement effective for a period of two
years after the date the Shelf Registration Statement is declared
effective (or one year in the case of a Shelf Registration Statement
effected at the request of the Initial Purchasers), or such shorter
period that will terminate when all of the Securities covered by the
Shelf Registration Statement are sold thereunder or are already
freely tradable ("SHELF EFFECTIVENESS PERIOD").
(h) The Company further agrees to supplement or amend the Shelf
Registration Statement and the related Prospectus if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder of Registrable Securities with respect to information
relating to such Holder, and to use its reasonable best efforts to cause any
such amendment to become effective and such Shelf Registration Statement and
Prospectus to become usable as soon as thereafter practicable.
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The Company agrees to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after it has being used or filed with
the SEC.
(i) The Company shall pay all Registration Expenses in connection with any
registration pursuant to Section 2(a)-(h) hereof. Each Holder shall pay all
underwriting discounts and commissions, brokerage commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(j) An Exchange Offer Registration Statement pursuant to Section 2(a)-(e)
hereof or a Shelf Registration Statement pursuant to Section 2(f)-(h) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC.
(k) If (i) the Exchange Offer Registration Statement is not filed prior to
the date specified in Section 2(a)(i), (ii) the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, is not
declared effective prior to the date specified in Section 2(a)(ii) or Section
2(g)(ii), respectively, (iii) the Exchange Offer is not completed prior to the
date specified in Section 2(a)(iv), or (iv) the Shelf Registration Statement, if
required hereby, has been declared effective and thereafter either ceases to be
effective or the Prospectus contained therein ceases to be usable at any time
during the Shelf Effectiveness Period, and such failure to remain effective or
usable exists for more than 30 days (whether or not consecutive) in any 12-month
period, then the Company shall pay additional interest to each Holder of the
Securities equal to 0.25% per annum upon the occurrence of each Registration
Default which amount shall increase by an additional 0.25% per annum for each
subsequent 90-day period that a Registration Default remains uncured; however,
in no event shall the rate of additional interest exceed .50% per annum
("ADDITIONAL INTEREST"). Such Additional Interest will accrue only for those
days that a Registration Default occurs and is continuing. All accrued
Additional Interest will be paid to the Holders of the Securities in the same
manner as interest payments on the Securities, with payments being made on the
interest payment dates for the Securities. Following the cure of all
Registration Defaults, no more Additional Interest will accrue.
(l) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company acknowledge that any failure by the Company to comply
with its obligations under Section 2(a)-(h) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a)-(h) hereof.
3. Registration Procedures. (a) In connection with its obligations
pursuant to Section 2(a)-(h) hereof, the Company shall as expeditiously as
possible:
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company, (y)
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shall, in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the Holders thereof and (z) shall comply as to form in
all material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith; and use its
reasonable best efforts to cause such Registration Statement to become effective
and remain effective for the applicable period in accordance with Section 2
hereof;
(ii) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each 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 keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
(iii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities that are covered by the Shelf Registration Statement, to
counsel for the Initial Purchasers, to counsel for such Holders and to each
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto, in order to facilitate the
sale or other disposition of the Registrable Securities thereunder; and the
Company consents to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the Holders of Registrable
Securities and any such Underwriters in connection with the offering and sale of
the Registrable Securities covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in accordance with applicable
law;
(iv) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC; cooperate
with such Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and do any and all other acts
and things that may be reasonably necessary or advisable to enable each Holder
to complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that the Company shall not be required
to (1) qualify as a foreign corporation or other entity or as a dealer in
securities in any such jurisdiction where it would not otherwise be required to
so qualify, (2) file any general consent to service of process in any such
jurisdiction or (3) subject itself to taxation in any such jurisdiction if it is
not so subject;
(v) in the case of a Shelf Registration, notify each Holder of Registrable
Securities that are covered by the Shelf Registration Statement, counsel for
such Holders and counsel for the Initial Purchasers promptly and, if requested
by any such Holder or counsel, confirm such advice in writing (1) when a
Registration Statement has become
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effective and when any post-effective amendment thereto has been filed and
becomes effective, (2) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has
become effective, (3) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (4) if, between
the effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties of
the Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to an offering of such Registrable
Securities cease to be true and correct in all material respects or if the
Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (5) of the happening of any event
during the period a Shelf Registration Statement is effective that makes any
statement made in such Registration Statement or the related Prospectus untrue
in any material respect or that requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements therein not
misleading and (6) of any determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate;
(vi) use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal of
any such order;
(vii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
documents incorporated therein by reference or exhibits thereto, unless
requested);
(viii) in the case of a Shelf Registration, cooperate with the Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be issued in such
denominations and registered in such names (consistent with the provisions of
the Indenture) as such Holders may reasonably request at least one Business Day
prior to the closing of any sale of Registrable Securities;
(ix) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(a)(v)(5) hereof, use its reasonable best efforts to
prepare and file with the SEC a supplement or post-effective amendment to such
Shelf Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the Company
shall notify the Holders of Registrable Securities to suspend use of the
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Prospectus as promptly as practicable after the occurrence of such an event, and
such Holders hereby agree to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission;
(x) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or of any document that is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel) and make
such of the representatives of the Company as shall be reasonably requested by
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities or their counsel)
available for discussion of such document; and the Company shall not, at any
time after initial filing of a Registration Statement, file any Prospectus, any
amendment of or supplement to a Registration Statement or a Prospectus, or any
document that is to be incorporated by reference into a Registration Statement
or a Prospectus, of which the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities
and their counsel) shall not have previously been advised and furnished a copy
or to which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities or their counsel)
shall reasonably object;
(xi) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(xii) cause the Indenture to be qualified under the Trust Indenture Act in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indenture as may be required for the Indenture to be
so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and use its reasonable best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(xiii) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities (an
"INSPECTOR"), any Underwriter participating in any disposition pursuant to such
Shelf Registration Statement, any attorneys and accountants designated by the
Holders of Registrable Securities and any attorneys and accountants designated
by such Underwriter, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the Company,
and cause the respective officers, directors and employees of the Company to
supply all information reasonably requested by any such Inspector, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement;
provided that if any such information is identified by the Company as being
confidential or proprietary, each Person receiving such information
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shall take such actions as are reasonably necessary to protect the
confidentiality of such information to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and interests
of any Inspector, Holder or Underwriter);
(xiv) in the case of a Shelf Registration, use its reasonable best efforts
to cause all Registrable Securities to be listed on any securities exchange or
any automated quotation system on which similar securities issued or guaranteed
by the Company are then listed if requested by the Majority Holders, to the
extent such Registrable Securities satisfy applicable listing requirements;
(xv) if reasonably requested by any Holder of Registrable Securities
covered by a Shelf Registration Statement, promptly include in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as the Company has received notification of the matters to be so
included in such filing; and
(xvi) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited to, an
Underwritten Offering and in such connection, (1) to the extent possible, make
such representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries and the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (2) obtain opinions of counsel to the Company (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (3) obtain
"comfort" letters from the independent registered public accountants of the
Company (and, if necessary, any other independent registered public accountant
of any subsidiary of the Company, or of any business acquired by the Company for
which financial statements and financial data are or are required to be included
in the Registration Statement) addressed to each selling Holder and Underwriter
of Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection with
underwritten offerings and (4) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company made pursuant to clause (1) above
and to evidence compliance with any customary conditions contained in an
underwriting agreement.
12
(b) In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
(c) In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
of the happening of any material pending corporate development or other similar
event, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement for one or more periods
not to exceed 90 days in any twelve-month period, and if so directed by the
Company, such Holder will deliver to the Company all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities that is current at the time of
receipt of such notice.
(d) If the Company shall give any notice pursuant to Section 3(c) hereof
to suspend the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, the Company shall extend the period during which such
Shelf Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when such dispositions
resume.
(e) The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment bank or
investment banks and manager or managers (each an "UNDERWRITER") that will
administer the offering will be selected by the Holders of a majority in
principal amount of the Registrable Securities included in such offering and
shall be reasonably satisfactory to the Company.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff has
taken the position that any broker-dealer that receives Exchange Securities for
its own account in the Exchange Offer in exchange for Securities that were
acquired by such broker-dealer as a result of market-making or other trading
activities (a "PARTICIPATING BROKER-DEALER") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Securities for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
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(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Company agrees to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement for a period of up to 180
days after the last Exchange Date (as such period may be extended pursuant to
Section 3(d) of this Agreement), if requested by the Initial Purchasers or by
one or more Participating Broker-Dealers, in order to expedite or facilitate the
disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above. The
Company further agrees that Participating Broker-Dealers shall be authorized to
deliver such Prospectus during such period in connection with the resales
contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company or any
Holder with respect to any request that they may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Initial Purchaser and each Holder, their respective
affiliates, directors and officers and each Person, if any, who controls any
Initial Purchaser or any Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), that arise out of, or are based upon, any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
any Prospectus or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities arise
out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to any Initial Purchaser or information relating to any
Holder furnished to the Company in writing through any Initial Purchaser or any
selling Holder expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3, the Company will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their respective affiliates and
each Person who controls such Persons (within the meaning of the Securities Act
and the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Initial Purchasers and the other selling Holders, the
directors of the Company, each officer of the Company who signed the
Registration Statement and each Person, if any, who controls the Company, any
Initial Purchaser and any other selling Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are
14
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to such Holder furnished to the Company in writing by such Holder expressly for
use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "INDEMNIFIED PERSON") shall
promptly notify the Person against whom such indemnification may be sought (the
"INDEMNIFYING PERSON") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees and
expenses shall be reimbursed as they are incurred. Any such separate firm (x)
for any Initial Purchaser, its affiliates, directors and officers and any
control Persons of such Initial Purchaser shall be designated in writing by the
Initial Purchasers, (y) for any Holder, its directors and officers and any
control Persons of such Holder shall be designated in writing by the Majority
Holders and (z) in all other cases shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees
15
and expenses of counsel as contemplated by this paragraph, the Indemnifying
Person shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 60 business
days after receipt by such Indemnifying Person of the aforesaid request, (ii)
the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement and (iii) such
Indemnified Person shall have given the Indemnifying Person at least 30 days'
prior written notice of its intention to settle. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (A) includes an
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company from the offering of the Securities and the Exchange Securities, on the
one hand, and by the Holders from receiving Securities or Exchange Securities
registered under the Securities Act, on the other hand, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) but also the relative fault of the Company on the one hand and
the Holders on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and the Holders on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at
16
which the Securities or Exchange Securities sold by such Holder exceeds the
amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the officers or
directors of or any Person controlling the Company, (iii) acceptance of any of
the Exchange Securities and (iv) any sale of Registrable Securities pursuant to
a Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company represents, warrants and
agrees that (i) the rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
any other outstanding securities issued or guaranteed by the Company under any
other agreement and (ii) the Company has not entered into, or on or after the
date of this Agreement will enter into, any agreement that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided that no amendment, modification, supplement, waiver or consent
to any departure from the provisions of Section 5 hereof shall be effective as
against any Holder of Registrable Securities unless consented to in writing by
such Holder. Any amendments, modifications, supplements, waivers or consents
pursuant to this Section 6(b) shall be by a writing executed by each of the
parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with
17
respect to the Initial Purchasers, the address set forth in the Purchase
Agreement; (ii) if to the Company, initially at the Company's address set forth
in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c); and (iii) to
such other persons at their respective addresses as provided in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c). All such notices and
communications shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and on the next Business Day if timely delivered
to an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Company with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of other Holders
hereunder.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
18
(h) 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
conflicts of laws rules of such state.
(j) Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CINCINNATI FINANCIAL CORPORATION
By: /s/ Kenneth W. Stecher
-----------------------------------------
Name: Kenneth W. Stecher
Title: Treasurer
Accepted as of the date hereof
J.P. Morgan Securities Inc.
UBS Securities LLC
Acting severally on behalf of themselves and the
several Initial Purchasers referred to herein
By: UBS Securities LLC
By: /s/ William J. Woolfrey
------------------------------------------
Name: William J. Woolfrey
Title: Executive Director
Debt Capital Markets
By: /s/ Joseph Moore
------------------------------------------
Name: Joseph Moore
Title: Director
Debt Capital Markets