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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
Dated June 3, 1997
among
TRIANGLE BANCORP, INC.,
TRIANGLE CAPITAL TRUST
and
WHEAT, FIRST SECURITIES, INC.
as Initial Purchaser
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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of June 3, 1997 among TRIANGLE BANCORP, INC., a registered bank holding
company organized under the laws of the State of North Carolina (the
"Company"), TRIANGLE CAPITAL TRUST, a statutory business trust created under
the laws of the state of Delaware (the "Issuer Trust"), and WHEAT, FIRST
SECURITIES, INC. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated May 29,
1997 (the "Purchase Agreement"), among the Company, as issuer of the 9.375%
Junior Subordinated Deferrable Interest Debentures due June 1, 2027 (the
"Junior Subordinated Debentures"), the Issuer Trust and the Initial Purchaser,
which provides for among other things, the sale by the Issuer Trust to the
Initial Purchaser of 20,000 of the Issuer Trust's 9.375% Capital Securities,
liquidation amount $1,000 per Capital Security (the "Capital Securities"), the
proceeds of which will be used by the Issuer Trust to purchase the Junior
Subordinated Debentures. The Capital Securities, together with the Junior
Subordinated Debentures and the Company's guarantee of the Capital Securities
(the "Guarantee") are collectively referred to as the "Securities". In order
to induce the Initial Purchaser to enter into the Purchase Agreement, the
Company and the Issuer Trust have agreed to provide to the Initial Purchaser
and its 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 capitalized
defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last paragraph of Section
3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
"Business Day" shall mean a day that is not a Saturday, a Sunday, or a day
on which banking institutions in New York, New York, or in Raleigh, North
Carolina, are authorized or required to be closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
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"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Issuer Trust; provided, however, that such
depositary must have an address in the Borough of Manhattan, in The City of
New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Offer" shall mean the offer by the Company and the Issuer Trust
to the Holders to exchange all of the Registrable Securities (other than
Private Exchange Securities) for a like principal amount of Exchange Securities
pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) 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
all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a) hereof.
"Exchange Securities" shall mean (i) with respect to the Junior
Subordinated Debentures, the 9.375% New Junior Subordinated Deferrable Interest
Debentures due June 1, 2027 (the "New Junior Subordinated Debentures")
containing terms substantially identical to the Junior Subordinated Debentures
(except that they will not contain terms with respect to the transfer
restrictions under the Securities Act (other than to require minimum transfers
thereof to be in blocks of $100,000 principal amount) and will not provide for
any liquidated damages thereon), (ii) with respect to the Capital Securities,
the Issuer Trust's 9.375% New Capital Securities, liquidation amount $1,000 per
Capital Security (the "New Capital Securities") which will have terms
substantially identical to the Capital Securities (except that they will not
contain terms with respect to transfer restrictions under the Securities Act
(other than require minimum transfers thereof to be in blocks of $100,000
liquidation amount) and will not provide for any increase in the distribution
rate thereon) and (iii) with respect to the Guarantee, the Company's guarantee
(the "New Guarantee") of the New Capital Securities which will have terms
substantially identical to the Guarantee.
"Holder" shall mean the Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture or the Trust Agreement.
"Indenture" shall mean the Junior Subordinated Indenture dated as of June
3, 1997 relating to the Junior Subordinated Debentures and the New Junior
Subordinated Debentures
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among the Company, as issuer, and Bankers Trust Company, as trustee, as the
same may be amended from time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble to
this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean the date of original issuance of the Securities.
"Liquidated Damages" shall have the meaning set forth in Section 2(e)
hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
liquidation amount of outstanding Capital Securities.
"Participating Broker-Dealer" shall have the meaning set forth in Section
3 (t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, limited liability company, or a government or
agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
"Private Exchange Securities" shall have the meaning set forth in Section
2(a) hereof.
"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 Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Securities and, if issued, the
Private Exchange Securities; provided, however, that Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such Securities or
Private Exchange Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act and such
Securities or Private Exchange Securities, as the case may be, shall have been
exchanged or disposed of pursuant to such Registration Statement, (ii) such
Securities or Private Exchange Securities, as the case may be, shall have been
sold to the public pursuant to Rule 144(k) (or any similar provision then in
force, but not Rule 144A) under the Securities Act, or (iii) such Securities or
Private Exchange
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Securities, as the case may be, shall have ceased to be outstanding or (iv)
with respect to the Securities, such Securities shall have been exchanged for
Exchange Securities upon consummation of the Exchange Offer and are thereafter
freely tradeable by the holder thereof (other than an affiliate of the Company).
"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 Commission or National Association of Securities
Dealers, Inc. (the "NASD") registration and filing fees, including, if
applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained by any Holder of Registrable
Securities in accordance with the rules and regulations of the NASD, (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 of
the Exchange Securities or Registrable Securities) and compliance with the
rules of the NASD, (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing the Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing any underwriting
agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency fees,
(v) the fees and disbursements of counsel for the Company and of the
independent certified public accountants of the Company, including the expenses
of any "cold comfort" letters required by or incident to such performance and
compliance, (vi) the fees and expenses of the Trustee, and any exchange agent
or custodian, (vii) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, and (viii) the reasonable fees and expenses of any
special experts retained by the Company in connection with the Registration
Statement.
"Registration Statement" shall mean any registration statement of the
Company and the Issuer Trust which 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 all material incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
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"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf registration"
statement of the Company and the Issuer Trust pursuant to the provisions of
Section 2(b) hereof which covers all of the Registrable Securities or all of
the Private Exchange Securities, as the case may be, on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the Commission, 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 all
material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of June 3, 1997, by the trustees named therein and the Company as
depositor.
"Trustees" shall mean any and all trustees with respect to (i) the Capital
Securities under the Trust Agreement, (ii) the Junior Subordinated Debentures
under the Indenture and (iii) the Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by any applicable
law or applicable interpretation of the staff of the Commission, the
Company and the Issuer Trust shall, for the benefit of the Holders, at
the Company's cost, use their respective best efforts to (i) cause to be
filed with the Commission within 150 days after the Issue Date an
Exchange Offer Registration Statement on an appropriate form under the
Securities Act covering the Exchange Offer, (ii) cause such Exchange
Offer Registration Statement to be declared effective under the
Securities Act by the Commission not later than the date which is 180
days after the Issue Date, and (iii) keep such Exchange Offer
Registration Statement effective for not less than 30 Business Days (or
longer if required by applicable law) after the date notice of the
Exchange Offer is mailed to the Holders. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company and the Issuer Trust
shall promptly commence the Exchange Offer and use their respective best
efforts to enable each Holder eligible and electing to exchange
Registrable Securities for a like principal amount of New Junior
Subordinated Debentures or a like liquidation amount of New Capital
Securities, together with the New Guarantee, as applicable (assuming that
such Holder is not an affiliate of the Company within the meaning of Rule
405 under the Securities Act and is not a broker-dealer tendering
Registrable Securities acquired directly from the Company for its own
account, acquires the Exchange Securities in the ordinary course of such
Holder's business and has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of
distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue
sky laws.
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In connection with the Exchange Offer, the Company and the Issuer Trust
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period
of not less than 30 days after the date notice thereof is mailed to
the Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York City time, on the
last Business Day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Securities delivered for exchange, and a
statement that such Holder is withdrawing his election to have such
Securities exchanged;
(v) notify each Holder that any Security not tendered by such
Holder in the Exchange Offer will remain outstanding and continue
to accrue interest or accumulate distributions, as the case may be,
but will not retain any rights under this Agreement (except in the
case of the Initial Purchaser and Participating Broker-Dealers as
provided herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If the Initial Purchaser determines upon advice of its outside counsel
that it is not eligible to participate in the Exchange Offer with respect to
the exchange of Securities constituting any portion of an unsold allotment in
the initial distribution, as soon as practicable upon receipt by the Company
and the Issuer Trust of a written request from such Initial Purchaser, the
Company and the Issuer Trust, as applicable, shall issue and deliver to such
Initial Purchaser in exchange (the "Private Exchange") for the Securities held
by such Initial Purchaser, a like liquidation amount of New Capital Securities
of the Issuer Trust, together with the New Guarantee, or a like principal
amount of the Junior Subordinated Debentures of the Company, as applicable,
that are identical (except that such securities may bear a customary legend
with respect to restrictions on transfer pursuant to the Securities Act) to the
Exchange Securities (the "Private Exchange Securities") and which are issued
pursuant to the Indenture, the Trust Agreement or the Guarantee (which provides
that the Exchange Securities will not be subject to the transfer restrictions
set forth in the Indenture or the Trust Agreement, as applicable (other than to
require minimum transfers thereof to be in blocks of $100,000 principal amount
or liquidation amount, as the case may be), and that the Exchange Securities,
the Private Exchange Securities and the Securities will vote and consent
together on all matters as one class and that neither the Exchange
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Securities,the Private Exchange Securities nor the Securities will have the
right to vote sent as a separate class on any matter). The Private Exchange
Securities shall be of the same series as the Exchange Securities and the
Company and the Issuer Trust will seek to cause the CUSIP Service Bureau to
issue the same CUSIP Numbers for the Private Exchange Securities as for the
Exchange Securities issued pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer and, if
applicable, the Private Exchange, the Company and the Issuer Trust, as the case
requires, shall:
(i) accept for exchange all Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver, or cause to be delivered, to the applicable Trustee
for cancellation all Securities or portions thereof so accepted for
exchange by the Company; and
(iii) issue, and cause the applicable Trustee under the Indenture,
the Trust Agreement or the Guarantee, as applicable, to promptly
authenticate and deliver to each Holder, new Exchange Securities or
Private Exchange Securities, as applicable, equal in principal amount to
the principal amount of the Junior Subordinated Debentures or equal in
liquidation amount to the liquidation amount to the Capital Securities
(together with the guarantee thereof as are surrendered by such Holder.
Distributions on each New Capital Security and interest on each New Junior
Subordinated Debenture issued pursuant to the Registered Exchange Offer and
Distributions or interest, as the case may be, on each Private Exchange
Security issued in the Private Exchange will accrue from the last date on which
a Distribution or interest was paid on the Capital Security or the Junior
Subordinated Debenture surrendered in exchange therefore or, if no Distribution
or interest has been paid on such Capital Security or Junior Subordinated
Debenture, from the Issue Date. To the extent not prohibited by any law or
applicable interpretation of the staff of the Commission, the Company and the
Issuer Trust shall use their best efforts to complete the Exchange Offer as
provided above, and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws 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 applicable law or any
applicable interpretation of the staff of the Commission. Each Holder of
Registrable Securities who wishes to exchange such Registrable Securities for
Exchange Securities in the Exchange Offer will be required to make certain
customary representations in connection therewith, including, in the case of
any Holder of Capital Securities, representations that (i) it is not an
affiliate of the Issuer Trust or the Company, (ii) the Exchange Securities to
be received by it were acquired in the ordinary course of its business and
(iii) at the time of the Exchange Offer, it has no arrangement with any person
to participate in the distribution (within the meaning of the Securities Act)
of the New Capital Securities. The Company and the Issuer Trust shall inform
the Initial Purchaser, after consultation with the Trustee, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchaser shall have the right to contact such Holders and otherwise facilitate
the tender of Registrable Securities in the Exchange Offer.
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Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company and the Issuer Trust shall have no further
obligation to register the Registrable Securities (other than Private Exchange
Securities) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that: (i) the Company, the
Issuer Trust or the Majority Holders reasonably determine, after
conferring with counsel, that the Exchange Offer Registration provided in
Section 2(a) above is not available because of any change in law or in
currently prevailing interpretations of the staff of the Commission; (ii)
the Company has received an opinion of counsel, rendered by a law firm
having a recognized national tax practice, to the effect that, as a
result of the consummation of the Exchange Offer, there is more than an
insubstantial risk that (x) the Issuer Trust would be subject to United
States federal income tax with respect to income received or accrued on
the Junior Subordinated Debentures or New Junior Subordinated Debentures,
(y) interest payable by the Company on such Junior Subordinated
Debentures or New Junior Subordinated Debentures would not be deductible
by the Company, in whole or in part, for United States federal income tax
purposes, or (z) the Issuer Trust would be subject to more than a de
minimis amount of other taxes, duties or other governmental charges;
(iii) the Exchange Offer Registration Statement is not declared effective
within 180 days of the Issue Date; or (iv) upon notice from any Holder on
or before the 20th Business Day following the consummation of the
Exchange Offer that (A) it is prohibited by law or Commission policy from
participating in the Exchange Offer, (B) it may not resell the New
Capital Securities, the New Guarantee and the New Junior Subordinated
Debentures acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such
resales or (C) it is a broker-dealer and owns Capital Securities acquired
directly from the Issuer Trust or an affiliate of the Issuer Trust, (any
of the events specified in clauses (i) through (iv) being a "Shelf
Registration Event" and the date of occurrence thereof, the "Shelf
Registration Event Date"), the Company and the Issuer Trust shall, at
their cost, use their respective best efforts to cause to be filed as
promptly as practicable after such Shelf Registration Event Date, as the
case may be, and, in event, within 45 days after such Shelf Registration
Event Date (which shall be no earlier than 75 days after the Closing
Time), a Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities, and shall use their
respective best efforts to have such Shelf Registration Statement
declared effective by the Commission as soon as practicable. No Holder
of Registrable Securities shall be entitled to include any of its
Registrable Securities in any Shelf Registration pursuant to this
Agreement unless and until such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such Holder and
furnishes to the Company and the Issuer Trust in writing, within 15 days
after receipt of a request therefor, such information as the Company and
the Issuer Trust may, after conferring with counsel with regard to
information relating to Holders
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that would be required by the Commission to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably request
for inclusion in the Shelf Registration Statement or Prospectus
included therein. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company and the Issuer Trust all
information with respect to such Holder necessary to make the information
previously furnished to the Company by such Holder not materially
misleading.
The Company and the Issuer Trust agree to use their respective best
efforts to keep the Shelf Registration Statement continuously effective for the
Rule 144(k) Period (subject to extension pursuant to the last paragraph of
Section 3 hereof) or for such shorter period which will terminate when all of
the Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
outstanding (the "Effectiveness Period"). The Company and the Issuer Trust
shall not permit any securities other than Registrable Securities to be
included in the Shelf Registration. The Company and the Issuer Trust will, in
the event a Shelf Registration Statement is declared effective, provide to each
Holder a reasonable number of copies of the Prospectus which is a part of the
Shelf Registration Statement, notify each such Holder when the Shelf
Registration has become effective and use their respective best efforts to take
certain other actions as are required to permit certain unrestricted resales of
the Registrable Securities. The Company and the Issuer Trust further agree, if
necessary, to supplement or amend the Shelf Registration Statement, 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 registrations,
and the Company and the Issuer Trust agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the Commission.
(c) Expenses. The Company, as issuer of the Junior Subordinated
Debentures, shall pay all Registration Expenses in connection with any
Registration Statement pursuant to Section 2(a) or 2(b) hereof and will
reimburse the Initial Purchaser for the reasonable fees and disbursements
of Alston & Bird LLP, counsel for the Initial Purchaser, incurred in
connection with the Exchange Offer and, if applicable, the Private
Exchange, and either Alston & Bird LLP or any one other counsel
designated in writing by the Majority Holders to act as counsel for the
Holders of the Registrable Securities in connection with a Shelf
Registration Statement, which other counsel shall be reasonably
satisfactory to the Company. Except as provided herein, each Holder
shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) will not be deemed to
have become effective unless it has been declared effective by the
Commission; provided, however, that if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction
or other order or requirement of the
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Commission or any other governmental agency or court, such Registration
Statement will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. The Company and the Issuer Trust
will be deemed not to have used their best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if either of them
voluntarily takes any action that would result in such any Registration
Statement not being declared effective or in the Holders of Registrable
Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless such action is required by
applicable law.
(e) Additional Interest. In the event that:
(i) (A) neither the Exchange Offer Registration Statement nor
a Shelf Registration Statement is filed with the Commission on or
prior to the 150th day after the Issue Date or (B) notwithstanding
that the Company and the Issuer Trust have consummated or will
consummate an Exchange Offer, the Company and the Issuer Trust are
required to file a Shelf Registration Statement and such Shelf
Registration Statement is not filed on or prior to the date
required by Section 2(b) hereof, then commencing on the day after
the applicable required filing date, liquidated damages shall
accrue on the principal amount of the Junior Subordinated
Debentures and, if the Exchange Offer has been consummated, the New
Junior Subordinated Debentures, and additional Distributions shall
accumulate on the liquidation amount of the Capital Securities and,
if the Exchange Offer has been consummated, the New Capital
Securities, each at a rate of 0.25% per annum; or
(iv) (A) neither the Exchange Offer Registration Statement nor
a Shelf Registration Statement is declared effective by the
Commission on or prior to the 180th day after the Issue Date or (B)
notwithstanding that the Company and the Issuer Trust have
consummated or will consummate an Exchange Offer, the Company and
the Issuer Trust are required to file a Shelf Registration
Statement and such Shelf Registration Statement is not declared
effective by the Commission on or prior to the 30th day after the
date such Shelf Registration Statement was required to be filed,
then, commencing on the 181st day after the Issue Date, liquidated
damages shall accrue on the principal amount of the Junior
Subordinated Debentures and, if the Exchange Offer has been
consummated, the New Junior Subordinated Debentures, and additional
Distributions shall accumulate on the liquidation amount of the
Capital Securities and, if the Exchange Offer has been consummated,
the New Capital Securities, each at a rate of 0.25% per annum; or
(v) (A) the Issuer Trust has not exchanged New Capital
Securities for all Capital Securities validly tendered for exchange
by their respective Holders or the Company has not exchanged the
New Guarantee or New Junior
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Subordinated Debentures for the Guarantee or Junior Subordinated
Debentures validly tendered, in accordance with the terms of the
Exchange Offer on or prior to the 30th day after the date on which
the Exchange Offer Registration Statement was declared effective or
(B) if applicable, the Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be
effective at any time prior to the expiration of the Rule 144(k)
Period (other than after such time as all Capital Securities have
been disposed of thereunder or otherwise cease to be Registrable
Securities), then liquidated damages shall accrue on the principal
amount of the Junior Subordinated Debentures and, if the Exchange
Offer has been consummated, the New Junior Subordinated Debentures,
and additional Distributions shall accumulate on the liquidation
amount of the Capital Securities and, if the Exchange Offer has been
consummated, the New Capital Securities, each at a rate of 0.25% per
annum commencing on (x) 31st day after such effective date, in the
case of (A) above, or (y) the day such Shelf Registration Statement
ceases to be effective in the case of (B) above;
provided, however, that neither the liquidated damages on the Junior
Subordinated Debentures and any outstanding New Junior Subordinated Debentures,
nor the additional distribution rate on the liquidation amount of the Capital
Securities and any outstanding New Capital Securities, may exceed in the
aggregate 0.25% per annum; provided, further, however, that (1) upon the filing
of the Exchange Offer Registration Statement or a Shelf Registration Statement
(in the case of clause (1) above), (2) upon the effectiveness of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of
clause (ii) above), or (3) upon the exchange of New Capital Securities, the New
Guarantee and New Junior Subordinated Debentures for all Capital Securities,
the Guarantee and all Junior Subordinated Debentures tendered (in the case of
clause (iii)(A) above), or upon the effectiveness of the Shelf Registration
Statement which had ceased to remain effective (in the case of clause (iii)(B)
above) liquidated damages on the Junior Subordinated Debentures and any
outstanding New Junior Subordinated Debentures, and additional distributions on
the liquidation amount of the Capital Securities and any outstanding New
Capital Securities as a result of such clause (or relevant subclause thereof),
as the case may be, shall cease to accrue and accumulate.
Any amounts of liquidated damages and additional distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above ("Liquidated Damages"), will
be payable in cash on the next succeeding June 1 or December 1. as the case may
be, to Holders on the relevant record dates for the payment of interest and
distributions pursuant to the Indenture and the Trust Agreement, respectively.
(f) Specific Enforcement. Without limiting the remedies available
to the Holders, the Company and the Issuer Trust acknowledge that any
failure by the Company or the Issuer Trust to comply with its obligations
under Section 2(a) and Section 2(b) hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy
at law, that it would not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, any Holder
may obtain such
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relief as may be required to specifically enforce the Company's and the
Issuer Trust's obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company and the Issuer Trust with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company and the Issuer Trust
shall use their best efforts to:
(a) prepare and file with the Commission a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Company and the Issuer Trust, (ii) shall, in the case of
a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and, in the case of an Exchange
Offer, be available for the exchange of the Registrable Securities, and
(iii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith; and use their best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof, provided, however,
that if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to
Section 2(a) is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company and the Issuer Trust shall furnish to
and afford the Holders of the Registrable Securities and each
Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed. The Company and
the Issuer Trust shall not file any Registration Statement or Prospectus
or any amendments or supplements thereto in respect of which the Holders
must be afforded an opportunity to review prior to the filing of such
document if the Majority Holders or such Participating Broker-Dealer, as
the case may be, their counsel or the managing underwriters, if any,
shall reasonably object;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented, if so determined by the Company
or the Issuer Trust or requested by the Commission, by any required
prospectus supplement and as so supplemented to be filed pursuant to Rule
424 (or any similar provision then in force) under the Securities Act,
and comply with the provisions of the Securities Act, the Exchange Act
and the rules and regulations promulgated thereunder applicable to it
with respect to the disposition of all securities covered by each
Registration Statement during the Effectiveness Period or the Applicable
Period, as the case may be, in accordance with the intended method or
methods of distribution by the
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selling Holders thereof described in this Agreement (including sales by
any Participating Broker-Dealer),
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities included in the Shelf Registration Statement, at
least three Business Days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed and
advising such Holder that the distribution of Registrable Securities will
be made in accordance with the method selected by the Majority Holders;
and (ii) furnish to each Holder of Registrable Securities included in the
Shelf Registration Statement 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 and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the public sale
or other disposition of the Registrable Securities; and (iii) consent to
the use of the Prospectus or any amendment or supplement thereto by each
of the selling Holders of Registrable Securities included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions by the time the applicable Registration
Statement is declared effective by the Commission as any Holder of
Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities shall
reasonably request in writing in advance of such date of effectiveness,
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that the Company and
the Issuer Trust shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d),
(ii) file any general consent to service of process in any jurisdiction
where it would not otherwise be subject to such service of process or
(iii) subject itself to taxation in any such Jurisdiction if it is not
then so subject;
(e) in the case of (1) a Shelf Registration or (2) Participating
Broker-Dealers from whom the Company or the Issuer Trust has received
prior written notice that they will be utilizing the Prospectus contained
in the Exchange Offer Registration Statement as provided in Section 3(t)
hereof, are seeking to sell Exchange Securities and are required to
deliver Prospectuses, notify each Holder of Registrable Securities or
such Participating Broker-Dealers, as the case may be, their counsel and
the managing underwriters, if any, promptly and promptly confirm such
notice in writing (1) when a Registration Statement has become effective
and when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the Commission or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Shelf Registration
Statement has
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become effective, (iii) of the issuance by the Commission or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the qualification of the Registrable Securities
or the Exchange Securities to be offered or sold by the Participating
Broker-Dealer in any jurisdiction described in paragraph 3(d) hereof or
the initiation of any proceedings for that purpose, (iv) in the case of a
Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, any of the representations and warranties of the Company and the
Issuer Trust contained in any purchase agreement, securities sales
agreement or other similar agreement shall cease to be true and correct in
all material respects, (v) of the happening of any event or the failure of
any event to occur or the discovery of any facts or otherwise, during the
Effectiveness Period which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which causes such Registration Statement or Prospectus to 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 (vi) the
Company and the Issuer Trust's reasonable determination that a
post-effective amendment to the Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) in the case of a Shelf Registration, finish to each Holder of
Registrable Securities included within the coverage of such Registration
Statement, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated therein
by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
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 in such denominations
(consistent with the provisions of the Indenture and the Trust Agreement)
and registered in such names as the selling Holders or the underwriters
may reasonably request at least two Business Days prior to the closing of
any sale of Registrable Securities pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, use its best
efforts to prepare a supplement or post-effective amendment to such
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 the purchasers of the Registrable
Securities, such Prospectus would 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 to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such an
event;
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(j) in the case of a Shelf Registration, a reasonable time prior to
the filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such
document to the Holders; and make such of the representatives of the
Company and the Issuer Trust as shall be reasonably requested by the
Holders of Registrable Securities or the Initial Purchaser on behalf of
such Holders available for discussion of such document;
(k) obtain a CUSIP number for all New Capital Securities and the
Capital Securities (and if the Issuer Trust has made a distribution of
the Junior Subordinated Debentures or New Junior Subordinated Debentures
to the Holders of the Capital Securities, the Junior Subordinated
Debentures), not later than the effective date of an Exchange Offer
Registration Statement, and provide the Trustee with printed certificates
for the Exchange Securities or the Registrable Securities in a form
eligible for deposit with the Depository;
(l) cause the Indenture, the Trust Agreement, the Guarantee, and the
New Guarantee to be qualified under the Trust Indenture Act of 1939 (the
"TIA") in connection with the registration of the Exchange Securities or
Registrable Securities, as the case may be, and effect such changes to
such documents as may be required for them to be so qualified in
accordance with the terms of the TIA and execute, and use its best
efforts to cause the relevant 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 Commission to enable such documents to be
so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions as are reasonably
requested in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into and whether or
not the registration is an underwritten registration, if requested by (x)
the Initial Purchaser, in the case where such Initial Purchaser holds
Securities acquired by it as part of its initial distribution and (y)
other Holders of Securities covered thereby: (i) make such
representations and warranties to Holders of such Registrable Securities
and the underwriters (if any), with respect to the business of the Issuer
Trust, the Company and its subsidiaries as then conducted and the Shelf
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings,
and confirm the same if and when requested (ii) obtain opinions of
counsel to the Company and the Issuer Trust and updates thereof (which
may be in the form of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders of a
majority in principal amount of the Registrable Securities being sold,
addressed to each selling Holder and the underwriters (if any) covering
the matters customarily covered in opinions requested in underwritten
offerings
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and such other matters as may be reasonably requested by such underwriters
(it being agreed that the matters to be covered by such opinions may be
subject to customary qualifications and exceptions) (iii) obtain "cold
comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing under-writers from the independent certified
public accountants of the Company and the Issuer Trust (and, if necessary,
any other independent certified public accountants of any subsidiary of
the Company and the Issuer Trust or of any business acquired by the
Company and the Issuer Trust for which financial statements and financial
data are, or are required to be, included in the Shelf Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and such
other matters as reasonably requested by such under-writers in accordance
with Statement on Auditing Standards No. 72; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in
Section 4 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable
Securities covered by such Shelf Registration Statement and the managing
underwriters or agents) with respect to all parties to be indemnified
pursuant to said Section (including, without limitation, such underwriters
and selling Holders). The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, make reasonably
available for inspection by any selling Holder of such Registrable
Securities being sold or each such Participating Broker-Dealer, as the
case may be, any underwriter participating in any such disposition of
Registrable Securities, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Issuer Trust, the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Issuer Trust, the Company and its subsidiaries to supply all relevant
information in each case reasonably requested by any such Inspector in
connection with such Shelf Registration Statement provided, however, that
the foregoing inspection and information gathering shall be coordinated
by the Initial Purchaser and, on behalf of the selling Holders of
Registrable Securities, by one counsel designated as described in Section
2(c) hereof Records which the Company and the Issuer Trust determine, in
good faith, to be confidential and any records which either of them
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is
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necessary in connection with any action, suit or proceeding or (iii) the
information in such Records has been made generally available to the
public. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer all be required to agree in writing that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuer Trust or the Company unless
and until such is made generally available to the public. Each selling
Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree in writing that it will,
upon learning that disclosure of such Records is sought in a court of
competent Jurisdiction, give notice to the Company and allow the Company
at its expense to undertake appropriate action to prevent disclosure of
the Records deemed confidential;
(o) comply with all applicable rules and regulations of the
Commission so long as any provision of this Agreement shall be applicable
and make generally available to their respective security holders earning
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12 month period if such period is
a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer or a Private Exchange, if
requested by a Trustee, obtain an opinion of counsel to the Company
addressed to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer or the Private Exchange,
as the case may be, and which includes an opinion that (i) the Company or
the Issuer Trust, as the case requires, has duly authorized, executed and
delivered the Exchange Securities or the Private Exchange Securities, as
the case may be, and (ii) each of the Exchange Securities or the Private
Exchange Securities, as the case may be, constitute a legal, valid and
binding obligation of the Company or the Issuer Trust, as the case
requires, enforceable against the Company or the Issuer Trust, as the
case requires, in accordance with their respective terms (in each case,
with customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Securities by Holders to the Company or
the Issuer Trust, as applicable (or to such other Person as directed by
the Company or the Issuer Trust, respectively), in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may
be, mark, or cause to be marked, on such Registrable Securities delivered
by such Holders that such Registrable Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange Securities,
as the case may be in no event shall such Registrable Securities be
marked as paid or otherwise satisfied;
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(r) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(s) use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which section shall be reasonably acceptable to
the Initial Purchaser or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of any broker-dealer (a
"Participating Broker-Dealer") that holds Registrable Securities acquired
for its own account as a result of market-making activities or other
trading activities and that will be the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Securities to be received
by such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the Commission
or such positions or policies, in the reasonable judgment of the Initial
Purchaser or such other representative, represent the prevailing views of
the staff of the Commission, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of such Exchange Securities, (ii) furnish
to each Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such Participating Broker-Dealer may reasonably request (each
of the Company and the Issuer Trust hereby consents to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto by any Person subject to the
prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, in connection with the sale or transfer of
the Exchange Securities covered by the Prospectus or any amendment or
supplement thereto), (iii) keep the Exchange Offer Registration Statement
effective and amend and supplement the Prospectus contained therein in
order to permit such Prospectus to be lawfully delivered by all Persons
subject to the prospectus delivery requirements of the Securities Act for
such period of time as such Persons must comply with such requirements
under the Securities Act and applicable rules and regulations in order to
resell the Exchange Securities; provided, however, that such period shall
not be required to exceed 90 days (or such longer period if extended
pursuant to the last sentence of Section 3 hereof) (the "Applicable
Period"), and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:
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"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the Securities Act
in connection with any resale of Exchange Securities received in
respect of such Registrable Securities pursuant to the Exchange
Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer
will not be deemed to admit that it is an underwriter within the meaning
of the Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company and the Issuer Trust agree to deliver to the
Initial Purchaser or to another representative of the Participating
Broker-Dealers, if requested by such Initial Purchaser or such other
representative of the Participating Broker-Dealers, on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer (i)
an opinion of counsel in form and substance reasonably satisfactory to the
Initial Purchaser or such other representative of the Participating
Broker-Dealers, covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate containing
certifications substantially similar to those set forth in Section 5(g) of
the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities and (iii) as
well as upon the effectiveness of the Exchange Offer Registration
Statement, a comfort letter, in each case, in customary form if permitted
by Statement on Auditing Standards No. 72.
The Company or the Issuer Trust may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company or the Issuer Trust, as applicable, such information regarding such
seller as may be required by the staff of the Commission to be included in a
Registration Statement. The Company or the Issuer Trust may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to
finish such information within a reasonable time after receiving such request.
The Company shall have no obligation to register under the Securities Act the
Registrable Securities of a seller who so fails to furnish such information.
In the case of (1) a Shelf Registration Statement or (2) Participation-
Broker-Dealers who have notified the Company and the Issuer Trust that they
will be utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(t) hereof and are seeking to sell Exchange
Securities and are required to deliver Prospectuses, each Holder agrees that,
upon receipt of any notice from the Company or the Issuer Trust of the
happening of any event of the kind described in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith suspend use of the
Prospectus and discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in
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writing (the "Advice") by the Company and the Issuer Trust that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company and the
Issuer Trust, such Holder will deliver to the Company or the Issuer Trust (at
the Company's or the Issuer Trust's expense, as the case requires) all copies in
such Holder's possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities or Exchange
Securities, as the case may be, current at the time of receipt of such notice.
If the Company or the Issuer Trust shall give any such notice to suspend the
disposition of Registrable Securities, or Exchange Securities, as the case may
be, pursuant to a Registration Statement, the Company and the Issuer Trust shall
use their best efforts to file and have declared effective (if an amendment) as
soon as practicable an amendment or supplement to the Registration Statement and
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company and the Issuer Trust shall have made available to the
Holders (x) copies of the supplemented or amended Prospectus necessary to resume
such dispositions or (y) the Advice.
4. Indemnification and Contribution.
(a) In connection with any Registration Statement, the Company and
the Issuer Trust shall, jointly and severally, indemnify and hold
harmless the Initial Purchaser, each Holder, each underwriter who
participates in an offering of the Registrable Securities, each
Participating Broker-Dealer, each Person, if any, who controls any of
such parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and each of their respective directors,
officers, employees and agents, as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred,
arising out of any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any
amendment thereto), covering Registrable Securities or Exchange
Securities, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained
in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, to
the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission,
or any such
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alleged untrue statement or omission, if such settlement is effected
with the prior written consent of the Company; and
(iii) from and against any and all expenses whatsoever, as
incurred (including reasonable fees and disbursements of counsel
chosen by such Holder, such Participating Broker-Dealer, or any
underwriter (except to the extent otherwise expressly deed in
Section 4(c) hereto), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation
or proceeding by any court or governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 4(a);
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished in writing to the
Company or the Issuer Trust by such Holder, such Participating Broker-Dealer,
or any underwriter with respect to such Holder, Participating Broker-Dealer or
any underwriter, as the case may be, expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) and (ii) the Company and the Issuer Trust shall not be
liable to any such Holder, Participating Broker-Dealer, any underwriter or
controlling with respect to any untrue statement or alleged untrue statement or
omission or alleged person, with omission in any preliminary Prospectus to the
extent that any such loss, liability, claim, damage or expense of any Holder,
Participating Broker-Dealer, any underwriter or controlling person results from
the fact that such Holder, any underwriter or Participating Broker-Dealer, sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final Prospectus as then
amended or supplemented if the Company had previously finished copies thereof
to such Holder, underwriter, or Participating Broker-Dealer, and the loss,
liability, claim, damage or expense of such Holder, underwriter, Participating
Broker-Dealer, or controlling person results from an untrue statement or
omission of a material fact contained in the preliminary Prospectus which was
corrected in the final Prospectus. Any amounts advanced by the Company or the
Issuer Trust to an indemnified party pursuant to this Section 4 as a result of
such losses shall be returned to the Company or the Issuer Trust if it shall be
finally determined by such a court in a judgment not subject to appeal or final
review that such indemnified party was not entitled to indemnification by the
Company or the Issuer Trust.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Issuer Trust, any underwriter and the
other selling Holders and each of their respective directors, officers
(including each officer of the Company and the Issuer Trust who signed
the Registration Statement), employees and agents and each Person, if
any, who controls the Company, the Issuer Trust, any underwriter or any
other selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in the
indemnity contained in Section 4(a) hereof, as incurred, but
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only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Company or the Issuer Trust by such selling Holder with
respect to such Holder expressly for use in such Registration Statement
(or any amendment thereto), or any such Prospectus (or any amendment or
supplement thereto); provided, however, that, in the case of a Shelf
Registration Statement, no such Holder shall be liable for any amount
hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers
properly served on such indemnified party, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability which it may have under this Section 4, except to the extent
that it is materially prejudiced by such failure. An indemnifying party
may participate at its own expense in the defense of such action. If an
indemnifying party so elects within a reasonable time after receipt of
such notice, an indemnifying party, severally or jointly with any other
indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and reasonably acceptable to the
indemnified parties defendant in such action, provided, however, that if
(i) representation of such indemnified party by the same counsel would
present a conflict of interest or (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and
the indemnifying party and any such indemnified party reasonably
determines that there may be legal defenses available to such indemnified
party which are different from or in addition to those available to such
indemnifying party, then in the case of clauses (i) and (ii) of this
Section 4(c) such indemnifying party and counsel for each indemnifying
party or parties shall not be entitled to assume such defense. If an
indemnifying party is not entitled to assume the defense of such action
as a result of the proviso to the preceding sentence, counsel for such
indemnifying party and counsel for each indemnified party or parties
shall be entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of such action, in
accordance with and as permitted by the provisions of this paragraph,
such indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection
with such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to local
counsel), separate from its own counsel, for all indemnified parties in
connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4
(whether or not the indemnified
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parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional written release in
form and substance satisfactory to the indemnified parties of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
(d) Notwithstanding the last sentence of Section 4(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of
counsel pursuant to Section 4(a)(iii) above, such indemnifying party
agrees that it shall be liable for any settlement effected without its
written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement provided that an indemnified party shall not be liable
for any such settlement effected without its consent if such indemnifying
party (1) reimburses such indemnified party in accordance with such
request to the extent it considers reasonable and (2) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in
this Section 4 is for any reason held to be unavailable to the
indemnified parties although applicable in accordance with its terms, the
Company, the Issuer Trust, and the Holders shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company, the
Issuer Trust, and the Holders, as incurred; provided that no Person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person
that was not guilty of such fraudulent misrepresentation. As between the
Company, the Issuer Trust, and the Holders, such parties shall contribute
to such aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement in such proportion as
shall be appropriate to reflect the relative fault of the Company and
Issuer Trust, on the one hand, and the Holders, on the other hand, with
respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as
well as any other relevant equitable considerations. The relative fault
of the Company and the Issuer Trust, on the one hand, and of the Holders,
on the other hand, 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 the Issuer Trust, on the one hand,
or by or on behalf of the Holders, on the other, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Issuer
Trust and the Holders of the Registrable Securities agree that it would
not be just and
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equitable if contribution pursuant to this Section 4 were to be determined
by pro rata allocation or by any other method of allocation that does not
take into account the relevant equitable considerations. For purposes of
this Section 4, each affiliate of a Holder, and each director, officer,
employee, agent and Person, if any, who controls a Holder or such
affiliate within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution
as such Holder, and each director of each of the Company or the Issuer
Trust, each officer of each of the Company or the Issuer Trust who signed
the Registration Statement, and each Person, if any, who controls each of
the Company and the Issuer Trust within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as each of the Company or the Issuer Trust.
5. Participation in Underwritten Registrations. No Holder may participate
in any underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
6. Selection of Underwriters. The Holders of Registrable Securities
covered by a Shelf Registration Statement who desire to do so may sell the
securities covered by such Shelf Registration in an underwritten offering. In
any such underwritten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Registrable Securities included
in such offering; provided, however, that such underwriters and managers must
be reasonably satisfactory to the Company and the Issuer Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company or the
Issuer Trust is subject to the reporting requirements of Section 13 or 15
of the Exchange Act and any Registrable Securities remain outstanding,
each of the Company and the Issuer Trust, as the case may be, will use
its best efforts to file the reports required to be filed by it under the
Securities Act and Section 13(a) or 15(d) of the Exchange Act and the
rules and regulations adopted by the Commission thereunder, or, if it
ceases to be so required to file such reports, it will, upon the request
of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales of their securities pursuant
to Rule 144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales of their securities
pursuant to Rule 144A under the Securities Act and it will take such
further action as any Holder of Registrable Securities may reasonably
request, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by (1) Rule 144 under the
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Securities Act, as such rule may be amended from time to time, (11) Rule
144A under the Securities Act, as such rule may be amended from time to
time, or (iii) any similar rules or regulations hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Securities, the
Company or the Issuer Trust, as the case may be, will deliver to such
Holder a written statement as to whether it has complied with such
requirements.
(b) No Inconsistent Agreements. The Company or the Issuer Trust has
not entered into nor will the Company or the Issuer Trust on or after the
date of this Agreement enter into any agreement which is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. 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 the Company's
or the Issuer Trust's other issued and outstanding securities under any
such agreements.
(c) 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 and the Issuer
Trust have 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
departure; provided no amendment, modification or supplement or waiver or
consent to the departure with respect to the provisions of Section 4
hereof shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be
amended, without the consent of any Holder of Registrable Securities, by
written agreement signed by the Company, the Issuer Trust and the Initial
Purchaser, to cure any ambiguity, correct or supplement any provision of
this Agreement that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent
with other provisions of this Agreement, (ii) this Agreement may be
amended, modified or supplemented, and waivers and consents to departures
from the provisions hereof may be given, by written agreement signed by
the Company, the Issuer Trust and the Initial Purchaser to the extent
that any such amendment, modification, supplement, waiver or consent is,
in their reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the Staff of the
Commission) or any change therein and (iii) to the extent any provision
of this Agreement relates to the Initial Purchaser, such provision may be
amended, modified or supplemented, and waivers or consents to departures
from such provisions may be given, by written agreement signed by the
Initial Purchaser, the Company and the Issuer Trust.
(d) 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 or the Issuer Trust by means of a notice
given in accordance with the provisions of this Section 7(d), which
address
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initially is, with respect to the Initial Purchaser, the address set forth
in the Purchase Agreement; and (ii) if to the Company or the Issuer Trust,
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 7(d).
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. 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.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
the Initial Purchaser, including, without limitation and without the need
for an express assignment, subsequent Holders; provided, however, 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 of 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.
(f) Third-Party Beneficiary. The Initial Purchaser shall be a third
party beneficiary of the agreements made hereunder between the Company
and the Issuer Trust, on the one hand, and the Holders, 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 Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF
LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK IN
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ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be affected or
impaired thereby.
(k) Securities Held by the Company, the Issuer Trust or its
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company, the Issuer Trust or its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the
Holders of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRIANGLE BANCORP, INC.
By:
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Name:
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Title:
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TRIANGLE CAPITAL TRUST
By:
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Name:
----------------------
Title: Administrative Trustee
Confirmed and accepted as of the date first above written:
WHEAT, FIRST SECURITIES, INC.
By:
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Name:
----------------------
Title:
----------------------
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