EXHIBIT 10.1
Composite Conformed Copy
FIRST AMERICAN CAPITAL TRUST I
8.50% Capital Securities (liquidation amount $1,000 per Capital Security)
guaranteed by The First American Financial Corporation
REGISTRATION RIGHTS AGREEMENT
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April 22, 1997
CHASE SECURITIES INC.
UBS SECURITIES LLC
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Dear Sirs:
First American Capital Trust I (the "Issuer"), a statutory business
trust formed under the Business Trust Act of the State of Delaware (Chapter 38,
Title 12, of the Delaware Code, 12 Del. C. Section 3801 et seq.), proposes to
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issue and sell to Chase Securities Inc. ("CSI") and UBS Securities LLC ("UBS")
(together with CSI, the "Initial Purchasers"), upon the terms and subject to the
conditions set forth in a purchase agreement dated April 17, 1997 (the "Purchase
Agreement"), an aggregate of 100,000 8.50% Capital Securities, liquidation
amount $1,000 per Capital Security (the "Capital Securities"). The Capital
Securities will be guaranteed by The First American Financial Corporation (the
"Company"), to the extent set forth in the Offering Memorandum (as defined
below), with respect to distributions and amounts payable upon liquidation or
redemption (the "Guarantee"), pursuant to the Guarantee Agreement (the
"Guarantee Agreement"), to be dated as of the Closing Date (as defined below),
executed and delivered by the Company and Wilmington Trust Company, not in its
individual capacity but solely as trustee (the "Guarantee Trustee"), a Delaware
banking corporation for the benefit of the holders from time to time of the
Capital Securities. The proceeds from the sale of the Capital Securities to the
Initial Purchasers will be aggregated with the entire proceeds from the sale by
the Issuer to the Company of the 8.50% Common Securities, liquidation amount
$1,000 per Common Security (the "Common Securities"), of the Issuer and will be
used by the Issuer to purchase the 8.50% Junior Subordinated Deferrable Interest
Debentures due 2012 (the "Debentures") issued by the Company. The Capital
Securities and the Common Securities will be issued pursuant to the Amended and
Restated Declaration of Trust of the Issuer, to be dated as of the Closing Date
(the "Trust Agreement"), among the Company, as Sponsor, the trustees named
therein (the "Trustees") and the holders
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from time to time of the Capital Securities and the Common Securities, which
represent undivided beneficial ownership interests in the assets of the Issuer.
The Debentures will be issued pursuant to a Junior Subordinated Indenture, to be
dated as of the Closing Date (the "Indenture"), between the Company and
Wilmington Trust Company, as trustee (the "Indenture Trustee"). The Capital
Securities, the Guarantee and the Debentures are collectively referred to herein
as the "Securities". Capitalized terms used herein without definition have the
respective meanings specified in the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Initial
Purchasers thereunder, the Issuer and the Company agree with you, (i) for the
benefit of the Initial Purchasers and (ii) for the benefit of the holders from
time to time of the Securities, including the Initial Purchasers and the
Exchange Securities (as defined herein) (each of the foregoing, a "Holder" and,
collectively, the "Holders"), as follows:
1. Registered Exchange Offer. The Issuer and the Company shall (i)
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prepare and, not later than 150 days following the Closing Date (as hereinafter
defined), file with the Commission a registration statement (the "Exchange Offer
Registration Statement") on an appropriate form under the Securities Act with
respect to a proposed offer (the "Registered Exchange Offer") to the Holders of
the Capital Securities to issue and deliver to such Holders, in exchange for the
Capital Securities, a like aggregate liquidation amount of new Capital
Securities (the "Exchange Capital Securities"), which Securities shall (a)
represent undivided beneficial ownership interests in the assets of the Issuer,
which assets shall be a new series of junior subordinated debentures issued by
the Company in exchange for the Debentures (the "Exchange Debentures") and (b)
be guaranteed on a junior subordinated basis by the Company (the "Exchange
Guarantee" and, together with the Exchange Capital Securities and the Exchange
Debentures, the "Exchange Securities") to the same extent that the Guarantee
guaranteed the Capital Securities, that are identical in all material respects
to the Securities, except for the deletion of certain transfer restrictions
relating to the Securities, (ii) use their respective reasonable best efforts to
cause the Exchange Offer Registration Statement to become effective under the
Securities Act no later than 180 days after the Closing Date and (iii) commence
the Registered Exchange Offer and use their respective reasonable best efforts
to issue, on or prior to 30 business days after the date on which the Registered
Exchange Offer was declared effective by the Commission (such period being
called the "Exchange Offer Registration Period"), Exchange Securities for
Securities. The Exchange Capital Securities will be issued pursuant to the
Trust Agreement, the Exchange Debentures will be issued pursuant to the
Indenture and the Exchange Guarantee will be issued pursuant to the Guarantee
Agreement.
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Issuer shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable each
Holder electing to exchange Securities for Exchange Securities (assuming that
such Holder (a) is not (i) an affiliate of the Company or the Issuer within the
meaning of the Securities Act or (ii) an Exchanging Dealer
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(as defined herein) not complying with the requirements of the next sentence,
(b) acquires the Exchange Securities in the ordinary course of such Holder's
business and (c) has no arrangements or understandings with any person to
participate in the distribution of the Exchange Securities) and to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of the several states of the United States. The Company, the
Issuer, the Initial Purchasers and each Exchanging Dealer (as defined below)
acknowledge that, pursuant to current interpretations by the Commission's staff
of Section 5 of the Securities Act, each Holder which is a broker-dealer
electing to exchange Securities, acquired for its own account as a result of
market making activities or other trading activities, for Exchange Securities
(an "Exchanging Dealer"), is required to deliver a prospectus containing the
information set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section and in Annex C hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer.
In connection with the Registered Exchange Offer, the Company and the
Issuer shall:
(a) 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;
(b) keep the Registered Exchange Offer open for not less than 30 days
after the date notice of the Registered Exchange Offer is mailed to the
Holders (or longer, if required by applicable law);
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable to the
Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Issuer shall:
(a) accept for exchange all Capital Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
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(b) deliver to the Property Trustee for cancellation all Capital
Securities so accepted for exchange;
(c) cause Debentures in aggregate principal amount equal to the
aggregate liquidation amount of Capital Securities so accepted for exchange
to be exchanged for Exchange Debentures
(d) cause the Guarantee to be exchanged for the Exchange Guarantee;
and
(e) cause the Property Trustee and the Indenture Trustee promptly to
authenticate and deliver to each holder of Capital Securities, Exchange
Capital Securities, Debentures and Exchange Debentures, as the case may be,
equal in principal amount or liquidation amount, as the case may be, to the
Securities of such holder so accepted for exchange.
The Company and the Issuer shall use their respective reasonable best
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein in order to permit such
prospectus to be used by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Securities;
provided that (i) in the case where such prospectus and any amendment or
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supplement thereto must be delivered by an Exchanging Dealer, such period shall
be the lesser of 180 days and the date on which all Exchanging Dealers have sold
all Exchange Securities held by them and (ii) the Company and the Issuer shall
make such prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 90 days after the consummation of the Registered
Exchange Offer.
The Indenture and the Trust Agreement shall provide that the
Securities and the Exchange Securities shall vote and consent together on all
matters as one class and that none of the Securities or the Exchange Securities
will have the right to vote or consent as a separate class on any matter.
Interest on each Exchange Debenture issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Debentures surrendered in exchange therefor or, if no interest
has been paid on the Debentures, from the date of original issue of the
Debentures.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company and the Issuer that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act and (iii) such Holder is not an
affiliate of the Company or the
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Issuer within the meaning of the Securities Act, or if it is an affiliate, it
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Company and the
Issuer will ensure that (i) any Exchange Offer Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include, as of the consummation
of the Registered Exchange Offer, an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) the Company and the Issuer are not
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required to file the Exchange Offer Registration Statement or permitted to
consummate the Registered Exchange Offer because the Registered Exchange Offer
is not permitted by applicable law or Commission policy, (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
would be subject to United States federal income tax with respect to income
received or accrued on the Debentures or Exchange Debentures, (y) interest
payable by the Company on such Debentures or Exchange Debentures would not be
deductible by the Company, in whole or in part, for United States federal income
tax purposes, or (z) the Issuer would be subject to more than a de minimis
amount of other taxes, duties or other governmental charges, (iii) any holder of
Transfer Restricted Securities notifies the Company and the Issuer on or before
the 20th business day following the consummation of the Registered Exchange
Offer that (A) it is prohibited by law or Commission policy from participating
in the Registered Exchange Offer, (B) it may not resell the Exchange Securities
acquired by it in the Registered Exchange Offer to the public without delivering
a prospectus and 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 Securities acquired directly from the Issuer or an
affiliate of the Issuer, then the following provisions shall apply:
(a) The Company and the Issuer shall use their reasonable best efforts
to file as promptly as practicable (but in no event more than 150 days after so
required or requested pursuant to this Section 2) with the Commission and
thereafter shall use their reasonable best efforts to cause to be declared
effective (but in no event more than 180 days after so required or requested
pursuant to this Section 2), a shelf registration statement on an appropriate
form under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities (as defined below) by the Holders thereof from time to
time in accordance with the methods of
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distribution set forth in such registration statement (hereafter, a "Shelf
Registration Statement" and, together with any Exchange Offer Registration
Statement, a "Registration Statement");
(b) The Company and the Issuer each shall use their respective
reasonable best efforts to keep the Shelf Registration Statement continuously
effective in order to permit the prospectus forming part thereof to be used by
Holders of Transfer Restricted Securities for a period of two years from the
Issue Date or such shorter period that will terminate when all the Transfer
Restricted Securities covered by the Shelf Registration Statement have been sold
pursuant thereto (in any such case, such period being called the "Shelf
Registration Period"). The Company and the Issuer each shall be deemed not to
have used their reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if any of them voluntarily takes any
action that would result in Holders of Transfer Restricted Securities covered
thereby not being able to offer and sell such Securities or Exchange Securities
during that period, unless such action is required by applicable law; and
(c) Notwithstanding any other provisions hereof, the Company and the
Issuer will ensure that (i) any Shelf Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder, (ii) any Shelf Registration Statement
and any amendment thereto (in either case, other than with respect to
information included therein in reliance upon or in conformity with written
information furnished to the Company or the Issuer by or on behalf of any Holder
specifically for use therein (the "Holders' Information")) does not, when it
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becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any prospectus forming part of any
Shelf Registration Statement, and any supplement to such prospectus (in either
case, other than with respect to Holders' Information), does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
3. Additional Interest. (a) If (i) the applicable Registration
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Statement is not filed with the Commission on or before the date specified for
such filing, (ii) such Registration Statement is not declared effective by the
Commission on or prior to the date specified in Section 1 (in the case of the
Exchange Offer Registration Statement) or Section 2 (in the case of the Shelf
Registration Statement) (such date the "Effectiveness Target Date"), (iii) the
Company and the Issuer fail to consummate the Exchange Offer within 30 business
days of the Effectiveness Target Date with respect to the Registered Exchange
Offer or (iv) the Shelf Registration Statement or the Exchange Offer
Registration Statement is filed and declared effective but thereafter ceases to
be effective (at any time that the Company is obligated to maintain the
effectiveness thereof) or to be usable in connection with resales of Transfer
Restricted Securities without being succeeded within 60 days by an additional
Registration Statement filed and declared effective that cures such failure
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), the Company will be obligated to pay additional interest in respect
of the Debentures (including in respect of amounts accruing
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during any Extension Period (as defined in the Indenture)) ("Additional
Interest") and corresponding additional distributions ("Additional
Distributions") will become payable on the Capital Securities, with respect to
the first 30-day period immediately following such Registration Default, in an
amount equal to .25% per week per $1,000 liquidation amount of the Capital
Securities held by such holder. The amount of Additional Interest (and
corresponding Additional Distributions) will increase by an additional .25% per
week per $1,000 liquidation amount of Capital Securities with respect to each
subsequent 30-day period until all Registration Defaults have been cured, up to
a maximum amount of Additional Interest (and corresponding Additional
Distributions) of .50% per week per $1,000 of liquidation amount of Capital
Securities. Following the cure of all Registration Defaults, the accrual of
Additional Interest will cease.
"Transfer Restricted Securities" means each Security until (i) the
date on which such Security has been exchanged by a person other than a broker-
dealer for an Exchange Security in the Registered Exchange Offer, (ii) following
the exchange by a broker-dealer in the Registered Exchange Offer of a Security,
the date on which such 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, (iii) the date on which
such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iv) the date
on which such Security is distributed to the public pursuant to Rule 144 under
the Act. Notwithstanding anything to the contrary in this Section 3(a), the
Company and the Issuer shall not be required to pay Additional Interest to the
Holder of Transfer Restricted Securities if such Holder: (a) failed to comply
with its obligations to make the representations in the second to last paragraph
of Section 1 or (b) failed to provide the information required to be provided by
it, if any, pursuant to Section 4(n).
(b) The Company and the Issuer shall notify the Indenture Trustee and
the paying agent under the Indenture immediately upon the happening of each and
every Registration Default. The Company and the Issuer shall pay the Additional
Interest due on the Transfer Restricted Securities by depositing with the paying
agent (which may not be the Company for these purposes), in trust, for the
benefit of the Holders thereof, prior to 10:00 a.m., New York City time, on the
next interest payment date specified by the Indenture and the Securities, sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each interest payment date specified by the Indenture to the
record holder entitled to receive the interest payment to be made on such date.
Each obligation to pay Additional Interest shall be deemed to accrue from and
including the applicable Registration Default.
4. Registration Procedures. In connection with any Registration
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Statement, the following provisions shall apply:
(a) The Company and the Issuer shall (i) furnish to each Initial
Purchaser, prior to the filing thereof with the Commission, a copy of the
Registration Statement and each
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amendment thereof and each supplement, if any, to the prospectus included
therein and use their reasonable best efforts to reflect in each such document,
when so filed with the Commission, such comments as CSI may reasonably and
timely propose; (ii) if requested by any Initial Purchaser, include the
information set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section and in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; and (iii) if requested by
any Initial Purchaser, include the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in the prospectus
forming a part of the Exchange Offer Registration Statement.
(b) The Company and the Issuer shall advise each Initial Purchaser,
each Exchanging Dealer and the Holders (if applicable), and, if requested by any
such person, confirm such advice in writing (which advice pursuant to clauses
(ii)-(vi) hereof shall be accompanied by an instruction to suspend the use of
the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has
been filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to any Registration Statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company and the Issuer of any
notification with respect to the suspension of the qualification of the
Securities or the Exchange Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(v) of the happening of any event that requires the making of any
changes in any Registration Statement so that such Registration Statement,
as of its effective date, does not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(vi) of the happening of any event that requires the making of any
changes in any prospectus so that, as of the date of such prospectus, the
statements therein do not include an untrue statement of a material fact or
omit to state a material fact necessary
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in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(c) The Company and the Issuer will make every reasonable effort to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(d) The Company and the Issuer will furnish to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one conformed copy of such Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if any such Holder so requests in
writing, all exhibits thereto (including those incorporated by reference).
(e) The Company and the Issuer will, during the Shelf Registration
Period, promptly deliver to each Holder of Transfer Restricted Securities
included within the coverage of any Shelf Registration Statement, without
charge, as many copies of the prospectus (including each preliminary prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Company and the Issuer
each consents to the use of the prospectus or any amendment or supplement
thereto by each of the selling Holders of Transfer Restricted Securities in
connection with the offer and sale of the Transfer Restricted Securities covered
by the prospectus or any amendment or supplement thereto.
(f) The Company and the Issuer will furnish to each Initial Purchaser
and each Exchanging Dealer and to any other Holder who so requests, without
charge, at least one conformed copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules, and, if any Initial Purchaser or Exchanging Dealer or any such Holder
so requests in writing, all exhibits (including those incorporated by
reference).
(g) The Company and the Issuer will, during the Exchange Offer
Registration Period or the Shelf Registration Period, as the case may be,
promptly deliver to each Initial Purchaser, each Exchanging Dealer and such
other persons that are required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus included
within the coverage of the Exchange Offer Registration Statement or the Shelf
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer, Initial Purchaser or other person may reasonably request; and
the Company and the Issuer each consents to the use of such prospectus or any
amendment or supplement thereto that complies in all material respects with the
Securities Act and the rules and regulations thereunder by any such Exchanging
Dealer, Initial Purchaser or other person as aforesaid.
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(h) Prior to any public offering of Securities or Exchange Securities
pursuant to any Registration Statement, the Company and the Issuer each will use
its respective reasonable best efforts to register or qualify or cooperate with
the Holders of Securities or Exchange Securities included therein and their
respective counsel in connection with the registration or qualification of such
Securities or Exchange Securities for offer and sale under the securities or
blue sky laws of such jurisdictions within the United States as any such Holder
reasonably requests in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Securities or Exchange Securities covered by such Registration Statement;
provided, however, that neither the Company nor the Issuer will be required (1)
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to qualify generally to do business in any jurisdiction where it is not then so
qualified or (2) to take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so subject.
(i) The Company and the Issuer each will cooperate with the Holders of
Securities or Exchange Securities to facilitate the timely preparation and
delivery of certificates representing Securities or Exchange Securities to be
sold pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as Holders may request in
writing a reasonable period of time prior to sales of Securities or Exchange
Securities pursuant to such Registration Statement.
(j) If (i) any event contemplated by paragraphs (b)(ii) through (vi)
above occurs during the period for which the Company and the Issuer are required
to maintain an effective Registration Statement, the Company and the Issuer will
promptly prepare and file with the Commission a post-effective amendment to the
Registration Statement or a supplement to the related prospectus or file any
other required document so that, as thereafter delivered to purchasers of the
Securities or Exchange Securities from a Holder, the prospectus will not include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities or
Exchange Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Securities or Exchange Securities, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company and the Issuer each will comply with all applicable
rules and regulations of the Commission and will make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(m) The Company and the Issuer will cause the Indenture, the Trust
Agreement and the Guarantee Agreement to be qualified under the Trust Indenture
Act as required by applicable law in a timely manner.
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(n) The Company and the Issuer may require each Holder of Transfer
Restricted Securities to be registered pursuant to any Shelf Registration
Statement to furnish to the Company and the Issuer such information regarding
the Holder and the distribution of such Transfer Restricted Securities as the
Company may from time to time reasonably require for inclusion in such Shelf
Registration Statement, and the Company and the Issuer may exclude from such
registration the Transfer Restricted Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
(o) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (vi) hereof, such
Holder will discontinue disposition of such Transfer Restricted Securities until
such Holder's receipt of copies of the supplemental or amended prospectus
contemplated by Section 4(j) hereof or until advised in writing (the "Advice")
by the Company that the use of the applicable prospectus may be resumed. If the
Company and the Trust shall give any notice under Section 4(b)(ii) through (vi)
during the period that the Company and the Issuer is required to maintain an
effective Registration Statement (the "Effectiveness Period"), such
Effectiveness Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Transfer Restricted Securities covered by such
Registration Statement shall have received (x) the copies of the supplemental or
amended prospectus contemplated by Section 4(j) (if an amended or supplemental
prospectus is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Company and the
Issuer shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action, if
any, as Holders of at least a majority in aggregate liquidation amount of the
Securities and Exchange Securities being sold or the managing underwriters (if
any) shall reasonably request in order to facilitate any disposition of
Securities or Exchange Securities pursuant to such Shelf Registration Statement,
provided that the Company and the Issuer shall not be required to enter into any
such agreement more than once with respect to all Securities.
(q) In the case of a Shelf Registration Statement, the Company and the
Issuer shall (i) make reasonably available for inspection by a representative
of, and Special Counsel (as defined below) acting for, Holders of at least a
majority in aggregate liquidation amount of the Securities and Exchange
Securities being sold and any underwriter participating in any disposition of
Securities or Exchange Securities pursuant to such Shelf Registration Statement,
all relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries and (ii) use its reasonable best
efforts to have its officers, directors, employees, accountants and counsel
supply all relevant information reasonably requested by such representative,
Special Counsel or any such underwriter (an "Inspector") in connection with such
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Shelf Registration Statement.
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(r) In the case of a Shelf Registration Statement, the Company and the
Issuer shall, if requested by Holders of at least a majority in aggregate
liquidation amount of the Securities and Exchange Securities being sold, their
Special Counsel or the managing underwriters (if any) in connection with such
Shelf Registration Statement, use their respective reasonable best efforts to
cause (i) their respective counsel to deliver an opinion relating to the Shelf
Registration Statement and the Securities or Exchange Securities, as applicable,
in customary form, (ii) their respective officers or trustees to execute and
deliver all customary documents and certificates requested by Holders of at
least a majority in aggregate liquidation amount of the Securities and Exchange
Securities being sold, their Special Counsel or the managing underwriters (if
any) and (iii) the Company's independent public accountants to provide a comfort
letter in customary form, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
5. Registration Expenses. The Company will bear all expenses
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incurred in connection with the performance of the obligations of the Company
and the Issuer under Sections 1, 2, 3 and 4 hereof and the Company will
reimburse the Initial Purchasers and the Holders for the reasonable fees and
disbursements of one firm of attorneys (in addition to local counsel, if any)
chosen by the Holders of at least a majority in aggregate liquidation amount of
the Securities and the Exchange Securities to be sold pursuant to each
Registration Statement (the "Special Counsel") acting for the Initial Purchasers
or Holders in connection therewith.
6. Indemnification. (a) In the event of the effectiveness of a
---------------
Shelf Registration Statement or in connection with any prospectus delivery
pursuant to an Exchange Offer Registration Statement by an Initial Purchaser or
Exchanging Dealer, as applicable, the Company and the Issuer shall, jointly and
severally, indemnify and hold harmless each Holder (including, without
limitation, any Initial Purchaser or Exchanging Dealer), its affiliates, their
respective officers, directors, employees, representatives and agents, and each
person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act (collectively referred to for purposes of this Section
6(a) and Section 7 as a "Holder") from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating to
purchases and sales of Securities or Exchange Securities), to which that Holder
may become subject, whether commenced or threatened, under the Securities Act,
the Exchange Act, any other federal or state statutory law or regulation, at
common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Registration Statement
or any prospectus forming part thereof or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and shall reimburse each Holder promptly upon demand for any legal
or other expenses reasonably incurred by that Holder in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that neither the
-------- -------
Company nor the Issuer shall be liable in any such case to the extent
13
that any such loss, claim, damage, liability or action arises out of, or is
based upon, (i) an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with any Holders' Information or (ii) a defect in a Exchange Offer
Registration Statement or prospectus contained therein delivered to the person
asserting such loss, claim, damage, liability or action after the Exchange Offer
Registration Period; and provided, further, that with respect to any such untrue
-------- -------
statement in or omission from any related preliminary prospectus, the indemnity
agreement contained in this Section 6(a) shall not inure to the benefit of any
Holder from whom the person asserting any such loss, claim, damage, liability or
action received Securities or Exchange Securities to the extent that such loss,
claim, damage, liability or action of or with respect to such Holder results
from the fact that both (A) a copy of the final prospectus was not sent or given
to such person at or prior to the written confirmation of the sale of such
Securities or Exchange Securities to such person and (B) the untrue statement in
or omission from the related preliminary prospectus was corrected in the final
prospectus unless, in either case, such failure to deliver the final prospectus
was a result of non-compliance by the Company or the Issuer with Section 4(d),
4(e), 4(f) or 4(g).
(b) In the event of the effectiveness of a Shelf Registration
Statement, each Holder shall indemnify and hold harmless the Company, the
Issuer, their respective affiliates, their respective officers, trustees,
directors, employees, representatives and agents, and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act (collectively referred to for purposes of this Section 6(b) and Section 7 as
the "Company"), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with any Holders' Information furnished to the Company by such
Holder, and shall reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that no such Holder shall be liable
-------- -------
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Securities or Exchange Securities
pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b),
14
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
-------- -------
party shall not relieve it from any liability which it may have under this
Section 6 except to the extent that it has been materially prejudiced (through
the forfeiture of substantive rights or defenses) by such failure; and provided,
--------
further, that the failure to notify the indemnifying party shall not relieve it
- -------
from any liability which it may have to an indemnified party otherwise than
under this Section 6. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than the
reasonable costs of investigation; provided, however, that an indemnified party
-------- -------
shall have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the indemnified party will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based upon advice of counsel
to the indemnified party) that there may be legal defenses available to it or
other indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict exists
(based upon advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 6(a) and 6(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such
15
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
7. Contribution. If the indemnification provided for in Section 6
------------
is unavailable or insufficient to hold harmless an indemnified party under
Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company from the offering and sale
of the Securities, on the one hand, and a Holder with respect to the sale by
such Holder of Securities or Exchange Securities, on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and such Holder on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and a Holder on the
other with respect to such offering and such sale shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Securities
(before deducting expenses) received by or on behalf of the Company as set forth
in the table on the cover of the Offering Memorandum, on the one hand, bear to
the total proceeds received by such Holder with respect to its sale of
Securities or Exchange Securities, on the other. The relative fault 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 the Company or information supplied by the Company on
the one hand or to any Holders' Information supplied by such Holder on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7 shall be deemed
to include, for purposes of this Section 7, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 7, an indemnifying party that is a Holder of
Securities or Exchange Securities shall not be required to contribute any amount
in excess of the amount by which the total price at which the Securities or
Exchange Securities sold by such indemnifying party to any purchaser exceeds the
amount of any damages which such indemnifying party has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
16
8. Rules 144 and 144A. The Company shall use its reasonable best
------------------
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written request of any Holder
of Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of such Holder's securities pursuant to Rules
144 and 144A. The Company covenants that it will take such further action as
any Holder of Transfer Restricted Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including, without
limitation, the requirements of Rule 144A(d)(4)). Upon the written request of
any Holder of Transfer Restricted Securities, the Company shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company or Issuer to register any of its securities pursuant to the
Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted
--------------------------
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate liquidation amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Company
(which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
No Holder may participate in any underwritten registration hereunder
unless such Holder (i) agrees to sell such Holder's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of
------------- ----------------------
this Agreement 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 have obtained the written consent of Holders of a
majority in aggregate liquidation amount of the Securities and the Exchange
Securities, taken as a single class. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Exchange
Securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in aggregate liquidation amount of the Securities and the
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
17
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Trust Agreement, with a
copy in like manner to Chase Securities Inc. and UBS Securities Inc.;
(2) if to an Initial Purchaser, initially at its address set forth in
the Purchase Agreement; and
(3) if to the Company or the Issuer, initially at the address of the
Company or the Issuer set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon the
----------------------
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
------------
counterparts (which may be delivered in original form or by telecopier) 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.
(e) Definition of Terms. For purposes of this Agreement, (a) the term
-------------------
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York.
18
(h) Remedies. In the event of a breach by the Company, the Issuer or
--------
by any Holder of any of their obligations under this Agreement, each Holder or
the Company or the Issuer, as the case may be, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The
Company, the Issuer and each Holder agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agree that, in the event
of any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(i) No Inconsistent Agreements. Each of the Company and the Issuer
--------------------------
represents, warrants and agrees that (i) it has not entered into, shall not, on
or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii)
without limiting the generality of the foregoing, without the written consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Transfer Restricted Securities, it shall not grant to any person the right to
request the Company or the Issuer to register any junior subordinated debt
securities of the Company or any securities of any financing subsidiary of the
Company under the Securities Act unless the rights so granted are not in
conflict or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company, the Issuer
-----------------------------
nor any of their respective security holders (other than the Holders of Transfer
Restricted Securities in such capacity) shall have the right to include any
securities of the Company or the Issuer in any Shelf Registration or Registered
Exchange Offer other than Transfer Restricted Securities.
(k) Severability. The remedies provided herein are cumulative and not
------------
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
19
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Issuer and you.
Very truly yours,
THE FIRST AMERICAN FINANCIAL
CORPORATION
----------------------------------------------
By: Thomas A. Klemens
Title: Executive Vice President and Chief
Financial Officer
FIRST AMERICAN CAPITAL TRUST I
----------------------------------------------
By: Thomas A. Klemens
Title: Regular Trustee
Accepted in New York, New York
CHASE SECURITIES INC.
By:____________________________
Title:
UBS SECURITIES LLC
By:____________________________
Title:
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. Each of the Company
and the Issuer has agreed that, for a period of 180 days after the Expiration
Date (as defined herein), it will make this Prospectus available to any broker-
dealer for use in connection with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. Each of the
Company and the Issuer has agreed that, for a period of 180 days after the
Expiration Date, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until _______________, 199__, all dealers effecting transactions in
the Exchange Securities may be required to deliver a prospectus./1/
Neither the Company nor the Issuer will receive any proceeds from any
sale of Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the over-the-
counter market, in negotiated transactions, through the writing of options on
the Exchange Securities or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company and the
Issuer will promptly send additional copies of this Prospectus and any amendment
or supplement to this Prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company and the Issuer have jointly
and severally agreed to pay all expenses incident to the Registered Exchange
Offer (including the expenses of one counsel for the Holders of the Securities)
other than commissions or concessions of any broker-dealers and will indemnify
the Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
- -----------
/1/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:_______________________________________
Address:____________________________________
____________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.