EXHIBIT 4.5
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
between
COMMERCE BANCORP, INC. AND
COMMERCE CAPITAL TRUST II,
AS ISSUERS
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
ON BEHALF OF ITSELF
AND AS REPRESENTATIVE OF THE OTHER INITIAL PURCHASERS
DATED AS OF MARCH 11, 2002
REGISTRATION RIGHTS AGREEMENT, dated as of March 11, 2002,
among Commerce Bancorp, Inc., a New Jersey business corporation (the "Company"),
Commerce Capital Trust II, a statutory business trust formed under the Delaware
Business Trust Act (the "Trust" and together with the Company, the "Issuers")
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), acting on behalf of itself and the other initial purchasers
(collectively, the "Initial Purchasers") named in Schedule A to the Purchase
Agreement (as defined below).
Pursuant to the Purchase Agreement, dated as of March 6, 2002
(the "Purchase Agreement"), among the Initial Purchasers and the Issuers, the
Initial Purchasers have agreed to purchase from the Trust up to 3,500,000 (or up
to 4,000,000 to the extent the option granted by the Trust to the Initial
Purchasers pursuant to the Purchase Agreement is exercised in full) 5.95%
Convertible Trust Preferred Securities (liquidation amount $50 per preferred
security) (the "Preferred Securities"). The proceeds of the sale by the Trust of
the Preferred Securities and the Common Securities of the Trust, liquidation
amount $50 per common security (the "Common Securities"), are to be invested in
the Junior Subordinated Convertible Debentures of the Company due March 11,
2032, issued pursuant to the Indenture, dated as of March 11, 2002, between the
Company and The Bank of New York, as Debt Trustee (the "Debentures"), and having
an aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and the Common Securities. The Preferred Securities are
guaranteed by the Company to the extent set forth in the Guarantee Agreement,
dated as of March 11, 2002 (the "Guarantee"), between the Company and The Bank
of New York, as Guarantee Trustee, and are convertible into the Common Stock,
par value $1.00 per share (the "Common Stock"), of the Company.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to their obligations
thereunder, the Issuers agree with the Initial Purchasers, (i) for the benefit
of the Initial Purchasers and (ii) for the benefit of the beneficial owners,
including the Initial Purchasers (each of the foregoing a "Holder" and together
the "Holders"), from time to time of the Preferred Securities, the Debentures
and the Common Stock of the Company issuable upon conversion of the Preferred
Securities or the Debentures (collectively, together with the Guarantee by the
Company of the Preferred Securities, the "Securities"), as follows:
1. Definitions. Capitalized terms used but not specifically defined
herein have the respective meanings ascribed thereto in the Purchase Agreement.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Agreement: This Registration Rights Agreement.
Applicable Amount: With respect to (i) each Debenture and Preferred
Security , for each day of the applicable period, the principal amount
of the Debenture or the liquidation amount of the Preferred Security,
as the case may be, on such day; and
(ii) The shares of Common Stock received upon the conversion of
a Preferred Security or Debenture, the principal of the related
Debenture from which such shares were converted.
Blue Sky Application: As defined in Section 6(a) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Business Day: A day other than a Saturday or Sunday or any day on
which banking institutions in the city of New York are authorized or
obligated by law or executive order to close.
Closing Date: The date of this Agreement.
Closing Time: As defined in the Purchase Agreement.
Commission: Securities and Exchange Commission.
Common Stock: As defined in the preamble hereto, and if such Common
Stock has been converted into or exchanged for other securities, any
such securities into or for which the Common Stock has been so
converted or exchanged, and any security issued with respect thereto
upon any stock dividend, split or similar event.
Company: As defined in the preamble hereto.
Damages Payment Date: Each March 15, June 15, September 15 and
December 15.
Debentures: As defined in the preamble hereto.
Effectiveness Period: As defined in Section 2(a)(iii) hereof.
Effectiveness Target Date: As defined in Section 2(a)(ii) hereof.
Exchange Act: Securities Exchange Act of 1934, as amended.
Guarantee: As defined in the preamble hereto.
Holder: As defined in the preamble hereto.
Holder Questionnaire: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: As defined in the preamble hereto.
Initial Purchasers: As defined in the preamble hereto.
Issuers: As defined in the preamble hereto.
Liquidated Damages: As defined in Section 3(a) hereof.
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Majority of Holders: Holders holding over 50% of the aggregate
Applicable Amount of Transfer Restricted Securities outstanding.
▇▇▇▇▇▇▇ ▇▇▇▇▇: As defined in the preamble hereto.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, unincorporated
organization, trust, joint venture or a government or agency or
political subdivision thereof.
Preferred Security: As defined in the preamble hereto.
Purchase Agreement: As defined in the preamble hereto.
Prospectus: The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date, each Person
who is a Holder at the close of business on the first day of the month
(whether or not a Business Day) in which the relevant Damages Payment
Date occurs.
Registration Default: As defined in Section 3(a) hereof.
Registration Securities: The collective reference to the Preferred
Securities (including the Guarantee) and the Debentures, and if such
securities have been converted into or exchanged for other securities,
any such securities into or for which the Preferred Securities
(including the Guarantee) or the Debentures have been so converted or
exchanged, and any security issued with respect thereto upon any stock
dividend, split or similar event.
Rules: As defined in Section 4(b)(xix) hereof.
Securities Act: Securities Act of 1933, as amended.
Securities: As defined in the preamble hereto.
Shelf Filing Deadline: As defined in Section 2(a)(i) hereof.
Shelf Registration Statement: As defined in Section 2(a)(i) hereof.
Suspension Notice. As defined in Section 4(c) hereof.
Suspension Period. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as in effect on the date the
Indenture is qualified under the TIA.
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Transfer Restricted Securities: All Securities until the earliest
of:
(i) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement;
(ii) the date on which such Security is transferred in
compliance with Rule 144 under the Securities Act or may be sold or
transferred by a person who is not an affiliate of the Issuer
pursuant to Rule 144(k) under the Securities Act (or any other
similar provision then in force); and
(iii) the date on which such Security ceases to be outstanding
(whether as a result of redemption, repurchase and cancellation,
conversion or otherwise).
Trust: As defined in the preamble hereto.
Trust Agreement: The Amended and Restated Trust Agreement, dated as
of March 11, 2002, among the Company, as sponsor, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇ and C. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., as administrative
trustees, The Bank of New York, as property trustee, and the Bank of
New York (Delaware), as Delaware trustee.
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
2. Shelf Registration
(a) The Issuers shall:
(i) not later than 90 days after the Closing Time (the "Shelf
Filing Deadline"), file or cause to be filed a registration
statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement"), which Shelf Registration Statement shall
provide for (i) resales by Holders of all Registration Securities,
(ii) the issuance of Common Stock upon the conversion of Preferred
Securities resold pursuant to such Shelf Registration Statement and
(iii) the resale of the Common Stock issuable upon conversion of
Preferred Securities by the Holder thereof;
(ii) use their reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission
not later than 180 days after the Closing Time (the "Effectiveness
Target Date"); and
(iii) use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the
extent necessary to ensure that (A) it is available for resales by
the Holders of Transfer Restricted Securities entitled to the
benefit of this Agreement and (B) conforms with the requirements of
this Agreement and the Securities Act and the rules and regulations
of the Commission promulgated thereunder as announced from time to
time for a period (the "Effectiveness Period") of:
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(1) with respect to (i) the Registration Securities, two
years following the last date of original issuance of such
securities and (ii) the Common Stock issuable upon conversion
of such Registration Securities, two years following the first
date as of which all of the Preferred Securities and Debentures
have been converted into Common Stock; or
(2) such shorter period that will terminate (x) upon the
expiration of the holding period applicable to the Transfer
Restricted Securities held by a non-affiliate of the Company
under Rule 144(k) of the Securities Act or any successor rule
thereto, (y) when all Transfer Restricted Securities have
ceased to be outstanding (whether as a result of redemption,
repurchase and cancellation, conversion or otherwise) or (z)
when all Transfer Restricted Securities of Holders that
complete and deliver in a timely manner the Holder
Questionnaire are registered under the Shelf Registration
Statement and have been disposed of in accordance with the
Shelf Registration Statement.
(b) No Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in the Shelf Registration Statement pursuant
to this Agreement unless such Holder furnishes to the Company in writing such
information as the Company may reasonably request for use in connection with the
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein and in any application to be filed with or under state securities laws
(the form of which request is attached to the Offering Memorandum as Exhibit A
and is referred to herein as the "Holder Questionnaire") within 20 Business Days
from the date the Holder Questionnaire is first mailed to such Holder or, in
connection with the resale of any Common Stock issuable upon conversion of the
Preferred Securities, upon conversion of the Preferred Securities or the
Debentures. In connection with all such requests for information from Holders of
Transfer Restricted Securities, the Company shall notify such Holders of the
requirements set forth in the preceding sentence. Holders that do not complete
the Holder Questionnaire and deliver it to the Company in a timely manner shall
not be named as a selling Holder in the Prospectus or preliminary Prospectus
included in the Shelf Registration Statement and therefore shall not be
permitted to sell any Transfer Restricted Securities pursuant to the Shelf
Registration Statement. No Holder of Transfer Restricted Securities shall be
entitled to Liquidated Damages pursuant to Section 3 hereof unless such Holder
shall have timely provided all such information as may be reasonably requested
by the Holder Questionnaire. Each Holder as to which the Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Issuers by such Holder not materially misleading. Each Holder
who intends to be named as a selling Holder in the Shelf Registration Statement
shall promptly furnish to the Company in writing such other information as the
Issuers may from time to time reasonably request in writing.
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3. Liquidated Damages
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, at any
time after the Effectiveness Target Date and during the
Effectiveness Period, shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded within
five Business Days by a post-effective amendment to the Shelf
Registration Statement or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
that cures such failure and, in the case of a post-effective
amendment, is itself immediately declared effective; or
(iv) (A) prior to or on the 45th or 75th day, as the case may
be, of any Suspension Period, such suspension has not been
terminated or (B) Suspension Periods exceed an aggregate of 90 days
in any 360 day period or an aggregate of 45 days (or 75 days, as
applicable) in any 90-day period,
(each such event referred to in foregoing clauses (i) through (iv), a
"Registration Default"), the Company hereby agrees to pay as liquidated
damages ("Liquidated Damages") with respect to the Transfer Restricted
Securities from and including the day following the Registration
Default to but excluding the day on which the Registration Default has
been cured, accruing at a rate:
(A) with respect to the first 90-day period during which a
Registration Default shall have occurred and be continuing, equal to
0.25% per annum of the Applicable Amount of such Transfer Restricted
Security, and
(B) with respect to the period commencing on the 91st day
following the day the Registration Default shall have occurred and
be continuing, equal to 0.50% per annum of the Applicable Amount of
such security; provided that in no event shall Liquidated Damages
accrue at a rate per year exceeding 0.50% of the Applicable Amount
of such security.
(b) All accrued Liquidated Damages shall be paid in arrears to
Record Holders of any Transfer Restricted Security by the Company on each
Damages Payment Date by wire transfer of immediately available funds or by
federal funds check; provided, that any Liquidated Damages accrued with respect
to any Transfer Restricted Security called for redemption on a redemption date
prior to the Damages Payment Date shall be paid instead to the Holder who
submitted such Transfer Restricted Security on the applicable redemption date.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Security, the accrual of Liquidated Damages with respect to
such Transfer Restricted Security will cease.
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All obligations of the Issuers set forth in this Section 3
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
The Liquidated Damages set forth above shall be the exclusive
monetary remedy available to the Holders of Transfer Restricted Securities for
such Registration Default and each Holder of a Transferred Restricted Security
shall be entitled to receive Liquidated Damages if such Holder has complied with
the requirements of Section 2(b) hereof.
4. Registration Procedures
(a) (i) In connection with the Shelf Registration Statement, the
Issuers shall comply with all the provisions of Section 4(b) hereof and shall
use their reasonable best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant thereto, shall as
expeditiously as possible prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Securities Act.
(ii) Before filing any Shelf Registration Statement or
Prospectus or any amendments or supplements thereto with the
Commission, the Issuers shall furnish to the ▇▇▇▇▇▇▇ ▇▇▇▇▇, as
representative of the Initial Purchasers, copies of all such
documents proposed to be filed and use their reasonable best efforts
to reflect in each such document when so filed with the Commission
such comments as the ▇▇▇▇▇▇▇ ▇▇▇▇▇, as representative of the Initial
Purchasers, reasonably shall propose.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the Issuers shall:
(i) Subject to any notice by the Issuers in accordance with this
Section of the existence of any fact or event of the kind described
in Section 4(b)(iii)(D), use their reasonable best efforts to keep
the Shelf Registration Statement continuously effective during the
Effectiveness Period; upon the occurrence of any event that would
cause the Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B)
not be effective and usable for resale of Transfer Restricted
Securities during the Effectiveness Period in accordance with the
methods of distribution described therein, the Issuers shall file
promptly an appropriate amendment to the Shelf Registration
Statement or a supplement to the related Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A)
or (B), use their reasonable best efforts to cause such amendment to
be declared effective and the Shelf Registration Statement and the
related Prospectus to become usable for their intended purposes as
soon as practicable thereafter. Notwithstanding the foregoing, the
Company may suspend the effectiveness of the Shelf Registration
Statement by written notice to the Holders for a period not to
exceed an aggregate of 45 days in any 90-day period (each such
period, a "Suspension Period") if:
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(x) an event occurs and is continuing as a
result of which the Shelf Registration Statement
would, in the Company's reasonable judgment, 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
(y) the Company reasonably determines that
the disclosure of such event at such time would have
a material adverse effect on the business of the
Company and its subsidiaries taken as a whole or on a
previously undisclosed proposed or pending material
business transaction;
provided that in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede the
Company's ability to consummate such transaction, the Issuers
may extend a Suspension Period from 45 days to 75 days;
provided, however, that Suspension Periods shall not exceed an
aggregate of 90 days in any 360-day period.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective
during the Effectiveness Period; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act applicable to
them, and to comply fully with the applicable provisions of Rules
424 and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act applicable to them with
respect to the disposition of all securities covered by the Shelf
Registration Statement during the Effectiveness Period in accordance
with the intended method or methods of distribution by the sellers
thereof set forth in the Shelf Registration Statement or supplement
to the Prospectus; provided that in no event will such method(s) of
distribution take the form of an Underwritten Offering without the
prior agreement of the Company, which agreement will not be
unreasonably withheld.
(iii) Advise the underwriter(s), if any, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as
representative of the Initial Purchasers, and each selling Holder
promptly (but in any event within five Business Days) and, if
requested by such Persons, to confirm such advice in writing:
(A) when the Prospectus or any Prospectus supplement or
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post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Shelf
Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
under the Securities Act or of the receipt of any notification with
respect to the suspension by any state securities commission of the
qualification or exemption from qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes,
or
(D) of the existence of any fact or the happening of any event,
during the Effectiveness Period, that makes any statement of a
material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Shelf Registration
Statement or the Prospectus so that, as of such date, the Shelf
Registration Statement and the Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, the Issuers shall use their reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time and
will provide to ▇▇▇▇▇▇▇ ▇▇▇▇▇, as representative of the Initial
Purchasers, and each Holder who is named in the Shelf Registration
Statement prompt notice of the withdrawal of any such order.
(iv) Make available at reasonable times for inspection by one or
more representatives of the selling Holders, designated in writing
by a Majority of Holders whose Transfer Restricted Securities are
included in the Shelf Registration Statement, any underwriter
participating in any distribution pursuant to the Shelf Registration
Statement, and any Broker-Dealer, attorney or accountant retained by
such selling Holders or any of the underwriter(s), all financial and
other records, pertinent corporate documents and properties of such
Issuer and its subsidiaries as shall be reasonably necessary to
enable them to exercise any applicable due diligence
responsibilities, and cause such Issuers' officers, directors,
trustees, managers and employees to supply, at the Company's
expense, all information reasonably requested by any such
representative or representatives of the selling Holders,
underwriter, Broker-Dealer, attorney or accountant in connection
with the Shelf Registration Statement after the filing thereof and
before its effectiveness, subject, upon the request of the Issuers,
to the execution of a confidentiality agreement which is reasonable
in the context of a registered public offering.
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(v) If requested by any selling Holders or the underwriter(s),
if any, promptly incorporate in the Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation: (1) information relating to
the "Plan of Distribution" of the Transfer Restricted Securities,
(2) information with respect to the principal amount or number of
Transfer Restricted Securities being sold to such underwriter(s),
(3) the purchase price being paid therefor and (4) any other terms
of the offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as reasonably
practicable after the Issuers are notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
(vi) Furnish to each selling Holder and each of the
underwriter(s), if any, upon their request, without charge, at least
one copy of the Shelf Registration Statement, as first filed with
the Commission, and of each amendment thereto (and any documents
incorporated by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference) as such Person may
request).
(vii) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request;
subject to any notice by the Company in accordance with this Section
4(b) of the existence of any fact or event of the kind described in
Section 4(b)(iii)(D), the Issuers hereby consent to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto.
(viii) The Issuers shall:
(A) Upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings for selling
securityholders, upon the date of closing of any sale of Transfer
Restricted Securities in an Underwritten Registration:
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(1) a certificate, dated the date of such closing, signed
by the Chief Financial Officer of the Company confirming, as of
the date thereof, the matters set forth in Section 5(c) of the
Purchase Agreement and such other matters as such parties may
reasonably request;
(2) opinions, each dated the date of such closing, of
counsel to the Issuers (or either of them) covering such of the
matters as are customarily covered in legal opinions to
underwriters in connection with underwritten offerings of
securities and such other matters as may be reasonably
requested by the selling Holders and the underwriters; and
(3) customary comfort letters, dated the date of such
closing, from the Issuers' independent accountants (and from
any other accountants whose report is contained or incorporated
by reference in the Shelf Registration Statement) to the extent
deliverable in accordance with their professional standards, in
the customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection with
underwritten offerings of securities;
(B) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no
less protective than those set forth in Section 6 hereof with
respect to all parties to be indemnified;
(C) make such representations and warranties to the selling
Holders participating in an Underwritten Registration and the
underwriter(s), if any, in form, substance and scope as are
customary made by issuers to underwriters in primary underwritten
offerings, including, but not limited to, those set forth in the
Purchase Agreement; and
(D) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement, if any, or other agreement entered into by
the selling Holders pursuant to this clause (ix).
(ix) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s),
if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions in the
United States as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Issuers shall not be required
(A) to register or qualify as a foreign corporation or a dealer of
securities where they are not now so qualified or to take any action
that would subject them to the service of process in any
jurisdiction where they are not now so subject or (B) to subject
themselves to taxation in any such jurisdiction if they are not now
so subject.
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(x) Unless the applicable Transfer Restricted Securities shall
be in book-entry only form, cooperate with the selling Holders and
the underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities
to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the selling Holders or the
underwriter(s), if any, may request at least two Business Days
before any sale of Transfer Restricted Securities made by such
selling Holder or underwriter(s).
(xi) Use their reasonable best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to
be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities.
(xii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use their reasonable best efforts to prepare a supplement
or post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading.
(xiii) Provide CUSIP numbers for the Preferred Securities and,
in the event of and at the time of any distribution thereof to
Holders, the Debentures registered under such Shelf Registration
Statement, not later than the effective date of the Shelf
Registration Statement and provide the applicable trustee under the
Indenture with certificates for such Securities that are in a form
eligible for deposit with The Depository Trust Company.
(xiv) Cooperate, assist and provide such information as is
required with respect to any filings required to be made with the
NASD and in the performance of any due diligence investigation by
any underwriter that is required to be retained in accordance with
the rules and regulations of the NASD.
(xv) Otherwise comply with all applicable rules and regulations
of the Commission and all reporting requirements under the rules and
regulations of the Exchange Act and generally make available to
their securityholders (or otherwise provide in accordance with
Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no
later than 45 days after the end of the 12-month period (or 90 days,
if such period is a fiscal year) beginning the first month of the
Issuers' first quarter commencing after the Effectiveness Target
Date, which statement shall cover such 12-month period.
12
(xvi) Cause the Indenture, the Guarantee Agreement and the Trust
Agreement to be qualified under the TIA not later than the effective
date of the Shelf Registration Statement required by this Agreement,
and, in connection therewith, cooperate with the applicable trustees
and the holders of Securities to effect such changes to such
documents as may be required for such documents to be so qualified
in accordance with the terms of the TIA; and execute and use their
reasonable best efforts to cause the applicable trustees thereunder
to execute all documents that 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.
(xvii) Cause all Transfer Restricted Securities covered by the
Shelf Registration Statement to be listed or quoted, as the case may
be, on each securities exchange or automated quotation system on
which similar securities issued by the Issuers are then listed or
quoted.
(xviii) Provide to each Holder, upon written request, each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective
date of the Shelf Registration Statement.
(xix) In the event that any Broker-Dealer shall underwrite any
Transfer Restricted Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice (the
"Rules") and the By-Laws of the NASD) thereof, whether as a Holder
of such Transfer Restricted Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof,
or otherwise, assist such Broker-Dealer in complying with the
requirements of such Rules and By-Laws, including, without
limitation, by (A) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" to participate in the
preparation of the Shelf Registration Statement relating to such
Transfer Restricted Securities and to exercise usual standards of
due diligence in respect thereto, (B) indemnifying any such
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof and (C)
providing such information to such Broker-Dealer as may be required
in order for such Broker-Dealer to comply with the requirements of
the Rules of Fair Practice of the NASD.
(xx) Enter into such customary agreements and take such other
reasonable necessary actions in connection therewith (including
those reasonably requested by the Majority of Holders of Transfer
Restricted Securities covered by such Shelf Registration Statement)
in order to expedite or facilitate disposition of such Transfer
Restricted Securities.
13
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "Suspension Notice") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will, and will use its reasonable best efforts
to cause any underwriter(s) in an Underwritten Offering to, forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the Shelf
Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xii) hereof; or
(ii) such Holder is advised in writing by the Company that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by
reference in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such Suspension Notice.
(d) Upon the initial sale of any Transfer Restricted Securities
pursuant to the Shelf Registration Statement, each selling Holder shall deliver
a notice of such sale to each of the Issuers certifying that (i) the Prospectus
delivery requirements, if any, of the Securities Act have been complied with and
(ii) such selling Holder and the aggregate amount of Transfer Restricted
Securities owned by such selling Holder are identified in the related Prospectus
in accordance with the applicable rules and regulations under the Securities
Act.
5. Registration Expenses.
(a) All expenses incident to the Issuers' performance of or
compliance with this Agreement shall be borne by the Company regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the NASD);
(ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Preferred Securities or Debentures) and the
Issuers' expenses for messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Issuers and,
subject to Section 5(b) below, the Holders of Transfer Restricted
Securities;
14
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Preferred Securities and the
Common Stock to be issued upon conversion of the Preferred
Securities or Debentures on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Issuers (including the expenses of any special
audit and comfort letters required by or incident to such
performance).
The Company shall bear the Issuers' internal expenses
(including, without limitation, all salaries and expenses of their officers,
trustees and employees performing legal, accounting or other duties), the
expenses of any annual audit and the fees and expenses of any Person, including
special experts, retained by the Company.
(b) In connection with the Shelf Registration Statement required
by this Agreement, including any amendment or supplement thereto, and any other
documents delivered to any Holders, the Company shall reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being registered
pursuant to the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements of not more than one counsel, which shall be ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, or such other counsel as may be chosen by a Majority of
Holders for whose benefit the Shelf Registration Statement is being prepared.
6. Indemnification and Contribution
(a) The Company shall indemnify and hold harmless each Holder,
such Holder's officers and employees and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Exchange Act (each, an
"Indemnified Holder"), from and against any and all losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to resales
of the Transfer Restricted Securities), to which such Indemnified Holder may
become subject, insofar as any such loss, claim, damage, liability or action
arises out of, or is based upon, or is caused by:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement, any
preliminary Prospectus or Prospectus or any amendment or supplement
thereto or (B) any blue sky application or other document or any
amendment or supplement thereto prepared or executed by either
Issuer (or based upon written information furnished by or on behalf
of either Issuer expressly for use in such blue sky application or
other document or amendment on supplement) filed in any jurisdiction
specifically for the purpose of qualifying any or all of the
Transfer Restricted Securities under the securities law of any state
or other jurisdiction (such application or document being
hereinafter called a "Blue Sky Application"); or
15
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, or is caused by, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Shelf Registration Statement, any
preliminary prospectus or Prospectus or amendment or supplement thereto or Blue
Sky Application in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Holder (or its related
Indemnified Holder) specifically for use therein, provided, further, that the
Company shall not be liable for any loss, liability, claim, damage or expense
(1) arising from an offer or sale of Transfer Restricted Securities occurring
during a Suspension Period, provided the Holder has received a Suspension Notice
with respect to such Suspension Period prior to such offer or sale, or (2) if
the Holder fails to deliver at or prior to the written confirmation of sale, a
Prospectus that is amended or supplemented, and such Prospectus, as amended or
supplemented, would have corrected the untrue statement or omission or alleged
untrue statement or omission of a material fact contained in the Prospectus
delivered by the Holder, so long as the Prospectus, as so amended or
supplemented, has been delivered to such Holder prior to such time. The
foregoing indemnity agreement is in addition to any liability which the Company
may otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act and the Exchange Act , from and against
any and all losses, claims, damages or liabilities, joint or several, or any
action in respect thereof, to which the Company or any such controlling person
may become subject, insofar as any such loss, claim, damage or liability or
action arises out of, or is based upon, or is caused by:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement,
preliminary prospectus or Prospectus or any amendment or supplement
thereto or any Blue Sky Application; or
(ii) the omission or the alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein.
16
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action (including
any governmental investigation), the indemnified party shall 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 it has been materially prejudiced 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. The indemnifying party, upon request of the indemnified
party, shall, and the indemnifying party may elect to, retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding; provided,
however, that the Holders shall have the right to employ one separate firm (for
each action or group of related actions) to represent jointly the Holders and
their officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Holders against the Company under this Section 6 if, in the reasonable
judgment of the Majority of Holders seeking indemnification, it is advisable for
the Holders and such officers, employees and controlling persons to be jointly
represented by separate counsel because of the possible availability to them of
separate or further defenses, and in that event the fees and expenses of such
separate counsel shall be paid by the Company. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding, or
(ii) 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 of liability by reason
of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability (or action in respect thereof) referred to therein, 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) in such proportion as
is appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand
in connection with the statements or omissions or alleged statements or alleged
omissions that resulted in such loss, claim, damage or liability (or action in
respect thereof), as well as any other relevant equitable considerations.
17
The relative fault of the Issuers on the one hand and 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 an Issuer on the one hand or the Holders on the other, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. Each Issuer and each Holder
agree that it would not be just and equitable if the amount of contribution
pursuant to this Section 6(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d). 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 6 shall be deemed to include, for purposes of this Section 6, any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending or preparing to defend against any such action
or claim. Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
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. The Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint. The indemnity and contribution
provisions contained in this Section 6 shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Holder or by or on behalf of any
Issuer, or any person controlling such person, and (iii) acceptance of and
payment for any of the Transfer Restricted Securities. The remedies provided for
in this Section 6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
7. Rules 144 and 144A. The Issuers shall use their 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 either Issuer is not
required to file such reports, it will, within a reasonable period of time, upon
written request of any Holder of Transfer Restricted Securities, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rules 144 and 144A. The Issuers covenant that they 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 such Transfer Restricted Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4)). The Issuers will
provide a copy of this Agreement to prospective purchasers of Transfer
Restricted Securities identified to the Issuers by any Initial Purchaser upon
request. Upon the request of any Holder of Transfer Restricted Securities, the
Issuers shall deliver to such Holder a written statement as to whether it has
complied with such requirements. Not withstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Issuers to register any of its
securities pursuant to the Exchange Act.
18
8. Participation in Underwritten Registrations. 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 provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such
underwriting arrangements.
9. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by, and
the underwriting arrangements with respect thereto will be approved by, a
Majority of Holders whose Transfer Restricted Securities are included in such
offering; provided, that such investment bankers and managers must be reasonably
satisfactory to the Company; and provided, further, that the Company shall not
be responsible for the commissions of any Broker-Dealer or the fees of any
underwriter(s) incurred in any such Underwritten Offering or in any other
transfer or sale of such Transfer Restricted Securities.
10. Miscellaneous
(a) Remedies. Each Issuer acknowledges and agrees that any failure
by such Issuer to comply with its obligations under this Agreement hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Issuers' respective obligations under this
Agreement. Each Issuer further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither Issuer will, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. In addition,
neither Issuer shall grant to any of its security holders (other than the
Holders of Transfer Restricted Securities in such capacity) the right to include
any of its securities in the Shelf Registration Statement provided for in this
Agreement other than the Transfer Restricted Securities. Neither Issuer has
previously entered into any agreement (which has not expired or been terminated)
granting any registration rights with respect to its securities to any Person
which rights conflict with the provisions hereof.
19
(c) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Issuers have obtained the written
consent of a Majority of Holders.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture; and
(ii) if to either Issuer, at its address set forth in the
Purchase Agreement; and
(iii) if to the Initial Purchasers, initially at the address set
forth in the Purchase Agreement.
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 acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and the Holders, including without limitation and without the need for an
express assignment or any consent of either Issuer, subsequent Holders of
Transfer Restricted Securities; provided, however, that (i) this Agreement shall
not inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder and (ii) nothing contained herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms of the Purchase Agreement or the applicable
Operative Documents. If any transferee of any Holder shall acquire Transfer
Restricted Securities, in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted 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. The Issuers hereby
agree to extend the benefits of this Agreement to any subsequent Holders of
Transfer Restricted Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
20
(g) Securities Held by an Issuer or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by either
Issuer or its respective "affiliates" (as such term is defined in Rule 405 under
the Securities Act) (other than the Initial Purchasers or subsequent Holders of
Transfer Restricted Securities if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Transfer Restricted
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall remain in full force and effect and shall not
be affected or impaired or invalidated thereby, it being intended that all of
the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Issuers with respect to the Transfer Restricted Securities. There
are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted by
the Issuers with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(l) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers, on the one
hand, and the Initial Purchasers, on the other hand, and the Holders shall have
the right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COMMERCE BANCORP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
Title: Chairman and President
COMMERCE CAPITAL TRUST II
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Administrative Trustee
The foregoing Registration Rights Agreement
is hereby confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
Acting on behalf of itself and as representative
of the several Initial Purchasers
By: /s/▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
Authorized Representative