EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
DATED JULY 20, 1998
AMONG
UNITED COMMUNITY BANKS, INC.
UNITED COMMUNITY CAPITAL TRUST
AND
WHEAT FIRST SECURITIES, INC.
AS INITIAL PURCHASER
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of July 20, 1998 among UNITED COMMUNITY BANKS, INC., a registered bank
holding company organized under the laws of the State of Georgia (the
"Company"), UNITED COMMUNITY 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 July 15,
1998 (the "Purchase Agreement"), among the Company, as issuer of the 8.125%
Junior Subordinated Deferrable Interest Debentures due July 15, 2028 (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 21,000 of the Issuer Trust's 8.125% 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 Atlanta, Georgia, 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.
"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 8.125% New Junior Subordinated Deferrable Interest
Debentures due July 15, 2028 (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 8.125% 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
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registered owners of Registrable Securities under the Indenture or the Trust
Agreement. In the event of a Shelf Registration Statement, references to selling
Holders (including, without limitation, the requirement that a Holder provide
certain information to the Company and the Issuer Trust) will include beneficial
owners of Registrable Securities to the extent necessary and appropriate.
"INDENTURE" shall mean the Junior Subordinated Indenture dated as of July
20, 1998 relating to the Junior Subordinated Debentures and the New Junior
Subordinated Debentures between the Company, as issuer, and The Chase Manhattan
Bank, 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.
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"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 the Securities or Private
Exchange Securities, as the case may be, shall cease to be Registrable
Securities (i) when 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 by a person
other than a Participating Broker-Dealer, (ii) following the exchange by a
Participating Broker-Dealer in the Exchange Offer of a Security for an Exchange
Security, the date on which such Exchange Security is sold to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement, as
amended or supplemented, (iii) when such Securities or Private Exchange
Securities, as the case may be, shall have been sold to the public pursuant to
Rule 144 or are eligible for sale pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the Securities Act, or (iv)
when such Securities or Private Exchange Securities, as the case may be, shall
have ceased to be outstanding.
"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
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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.
"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 July 20, 1998, by the trustees named therein, the Company as
depositor and the holders from time to time of undivided beneficial interests in
the assets of the Issuer Trust.
"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.
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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 use their respective best efforts, for the benefit of the
Holders, at the Company's cost, (i) to cause to be filed with the Commission as
soon as practicable after the Issue Date, but in no event later than 150 days
after the Issue Date, an Exchange Offer Registration Statement on an appropriate
form under the Securities Act covering the Exchange Offer, (ii) to 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) to 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.
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 Business 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;
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(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, 5:00 p.m., New York City time, on the
last Business Day of the Exchange Period, by, including without
limitation, 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 Securities, the Private
Exchange Securities nor the Securities will have the right to vote or consent 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, to the extent permitted, 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.
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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 Sections 2(a) or 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 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, 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 20 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 selling 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) HOLDBACK AGREEMENT; POSTPONEMENT. The Company and the Issuer
Trust shall be entitled to cause the Shelf Registration Statement to be
withdrawn and the effectiveness thereof to be terminated and shall be entitled
to cause any Participating 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 to
suspend the use of the Prospectus, for a reasonable period of time, but not in
excess of 30 days during any twelve (12) month period, if the Board of Directors
of the Company determines in good faith that the registration and distribution
of the Securities covered by the Exchange Offer Registration Statement or
covered or to be covered by the Shelf Registration Statement would require
premature disclosure by the Company of any material corporate development
(including potential material business combination and merger and acquisition
transactions) affecting the Company and the Company promptly gives the Holders
of Registrable Securities and any Participating Broker-Dealers written notice of
such determination, containing a general statement of the reasons for such
postponement or withdrawal and an approximation of the period of the
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anticipated delay; PROVIDED, HOWEVER, that (i) the Holders of Registrable
Securities and any Participating Broker-Dealers will not disclose the
information contained in such statement and will not buy or sell shares of any
publicly traded class of the Company's capital stock until such information is
publicly disclosed by the Company and (ii) the Company may not utilize this
right more than twice in any twelve (12) month period.
(d) 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.
(e) 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 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.
(f) 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
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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 or
additional Distributions, as the case may be, shall accrue on the
principal or liquidation amount of the Registrable Securities to
which such default relates at a rate of 0.25% per annum; or
(ii) (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 or additional
Distributions, as the case may be, shall accrue on the principal or
liquidation amount of the Registrable Securities to which such
default relates at a rate of 0.25% per annum; or
(iii) (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 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, otherwise cease to be
Registrable Securities), then liquidated damages or additional
Distributions, as the case may be, shall accrue on the principal or
liquidation amount of the Registrable Securities at a rate of 0.25%
per annum commencing on (x) the 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, except as
provided in the next succeeding paragraph hereto;
PROVIDED, HOWEVER, that neither the liquidated damages nor additional
Distributions on the principal or liquidation amount of such Registrable
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 (i) above), (2)
-12-
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 or
additional Distributions on the principal or liquidation amount of such
Registrable Securities shall cease to accrue and accumulate.
If the Company or Issuer Trust issues a notice pursuant to Section 2(c)
hereof that the Shelf Registration Statement is unusable due to the pendency of
an announcement of a material corporate transaction, or such notice is required
under applicable securities laws to be issued by the Company or Issuer Trust,
and the aggregate number of days in any consecutive twelve-month period for
which the Shelf Registration Statement shall not be usable due to all such
notices issued or required to be issued exceeds 30 days in the aggregate, then
the interest rate borne by the Securities will be increased as described above
beginning on the 31st such date that such Shelf Registration Statement ceases to
be usable. Upon the Shelf Registration Statement once again becoming usable, the
interest rate borne by the Securities will be reduced to the original interest
rate if the Company or Issuer Trust is otherwise in compliance with this
Agreement as such time.
Any amounts of liquidated damages and additional distributions due
pursuant to Section 2(f)(i), (ii) or (iii) above ("Liquidated Damages"), will be
payable in cash on the next succeeding January 15 or July 15 , 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.
(g) 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 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:
-13-
(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, which shall be no less than five business days, 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 or Participating Broker-Dealers 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 within five
business days after receipt thereof;
(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 selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
-14-
(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, covered by the Registration Statement, their
counsel and the managing underwriters, if any, promptly and promptly confirm
such notice in writing (i) 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 become
effective, (iii) of
-15-
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) 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 (v) 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 time;
(g) in the case of a Shelf Registration, furnish 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 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 to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event;
-16-
(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 selling Holders; and make such of the representatives of the Company and
the Issuer Trust as shall be reasonably requested by such 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 Depositary;
(1) 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
-17-
the underwriters (if any) covering the matters customarily covered in opinions
requested in underwritten offerings 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 underwriters 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 underwriters 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 and upon request, 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
-18-
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 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 will 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 such 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),
-19-
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;
(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
-20-
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) substantially the following provision:
"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 sale 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(f) 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
furnish such information within a reasonable time after receiving such request.
The Company
-21-
shall have no obligation to register under the Securities Act the Registrable
Securities of a seller who so fails to furnish such information within a
reasonable time (not to exceed 20 days) after receiving such request and shall
be under no obligation to compensate any such seller for any lost income,
interest or other opportunity foregone, or any liability increased as a result
of the Company's decision to exclude such Seller. In addition, each Holder, by
its acquisition of a Registrable Security, agrees to the extent that it is
required to comply with the registration and prospectus delivery requirements of
the Securities Act, such Holder agrees to comply with such requirements.
In the case of (1) a Shelf Registration Statement or (2) Participating
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 selling 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(c), 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 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
-22-
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) against any and all loss, liability, claim, damage and
expense whatsoever, 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) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, provided that any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Holder,
such Participating Broker-Dealer, or any underwriter (except to the extent
otherwise expressly provided in Section 4(c) hereof)), 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 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 person,
with respect to any untrue statement or alleged untrue statement or omission
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or alleged 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 furnished 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 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 notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. The indemnifying
party shall assume the defense of such action, including the employment of
counsel reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred.
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In the case of parties indemnified pursuant to Section 7(a) above, counsel to
the indemnified parties shall be selected by the Company, and, in the case of
parties indemnified pursuant to Section 7(b) above, counsel to the indemnified
parties shall be selected by the Holders, Participating Broker-Dealers or
underwriters, if any. Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. 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 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release 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 indemnifying 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
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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 unenforceable to the indemnified parties
although applicable in accordance with its terms, the indemnifying parties shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by such indemnified
party, as incurred; PROVIDED that 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 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 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. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
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
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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 (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, (ii) 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
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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
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accordance with the provisions of this Section 7(d), which address 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; 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.
(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.
-29-
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE
IN THE STATE OF GEORGIA. 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 GEORGIA 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 GEORGIA IN 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.
UNITED COMMUNITY BANKS, INC.
By: /s/Jimmy C. Tallent
---------------------------
Name: Jimmy C. Tallent
Title: President
UNITED COMMUNITY CAPITAL TRUST
By: /s/Jimmy C. Tallent
---------------------------
Name: Jimmy C. Tallent
Title: Administrator
Confirmed and accepted as of the date first above written:
WHEAT FIRST SECURITIES, INC.
By: /s/Scott R. Anderson
--------------------------
Name: Scott R. Anderson
Title: Managing Director
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